[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



                         [H.A.S.C. No. 110-166]
 
                      IMPLICATIONS OF THE SUPREME

                    COURT'S BOUMEDIENE DECISION FOR

                   DETAINEES AT GUANTANAMO BAY, CUBA:

                      NON-GOVERNMENTAL PERSPECTIVE

                               __________

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              HEARING HELD

                             JULY 30, 2008


                                     
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                   HOUSE COMMITTEE ON ARMED SERVICES
                       One Hundred Tenth Congress

                    IKE SKELTON, Missouri, Chairman
JOHN SPRATT, South Carolina          DUNCAN HUNTER, California
SOLOMON P. ORTIZ, Texas              JIM SAXTON, New Jersey
GENE TAYLOR, Mississippi             JOHN M. McHUGH, New York
NEIL ABERCROMBIE, Hawaii             TERRY EVERETT, Alabama
SILVESTRE REYES, Texas               ROSCOE G. BARTLETT, Maryland
VIC SNYDER, Arkansas                 HOWARD P. ``BUCK'' McKEON, 
ADAM SMITH, Washington                   California
LORETTA SANCHEZ, California          MAC THORNBERRY, Texas
MIKE McINTYRE, North Carolina        WALTER B. JONES, North Carolina
ELLEN O. TAUSCHER, California        ROBIN HAYES, North Carolina
ROBERT A. BRADY, Pennsylvania        W. TODD AKIN, Missouri
ROBERT ANDREWS, New Jersey           J. RANDY FORBES, Virginia
SUSAN A. DAVIS, California           JEFF MILLER, Florida
RICK LARSEN, Washington              JOE WILSON, South Carolina
JIM COOPER, Tennessee                FRANK A. LoBIONDO, New Jersey
JIM MARSHALL, Georgia                TOM COLE, Oklahoma
MADELEINE Z. BORDALLO, Guam          ROB BISHOP, Utah
MARK E. UDALL, Colorado              MICHAEL TURNER, Ohio
DAN BOREN, Oklahoma                  JOHN KLINE, Minnesota
BRAD ELLSWORTH, Indiana              PHIL GINGREY, Georgia
NANCY BOYDA, Kansas                  MIKE ROGERS, Alabama
PATRICK J. MURPHY, Pennsylvania      TRENT FRANKS, Arizona
HANK JOHNSON, Georgia                BILL SHUSTER, Pennsylvania
CAROL SHEA-PORTER, New Hampshire     THELMA DRAKE, Virginia
JOE COURTNEY, Connecticut            CATHY McMORRIS RODGERS, Washington
DAVID LOEBSACK, Iowa                 K. MICHAEL CONAWAY, Texas
KIRSTEN E. GILLIBRAND, New York      GEOFF DAVIS, Kentucky
JOE SESTAK, Pennsylvania             DOUG LAMBORN, Colorado
GABRIELLE GIFFORDS, Arizona          ROB WITTMAN, Virginia
NIKI TSONGAS, Massachusetts
ELIJAH E. CUMMINGS, Maryland
KENDRICK B. MEEK, Florida
KATHY CASTOR, Florida
                    Erin C. Conaton, Staff Director
                Paul Oostburg, Professional Staff Member
                Thomas Hawley, Professional Staff Member
                    Caterina Dutto, Staff Assistant


                            C O N T E N T S

                              ----------                              

                     CHRONOLOGICAL LIST OF HEARINGS
                                  2008

                                                                   Page

Hearing:

Wednesday, July 30, 2008, Implications of the Supreme Court's 
  Boumediene Decision for Detainees at Guantanamo Bay, Cuba: Non-
  Governmental Perspective.......................................     1

Appendix:

Wednesday, July 30, 2008.........................................    51
                              ----------                              

                        WEDNESDAY, JULY 30, 2008
 IMPLICATIONS OF THE SUPREME COURT'S BOUMEDIENE DECISION FOR DETAINEES 
         AT GUANTANAMO BAY, CUBA: NON-GOVERNMENTAL PERSPECTIVE
              STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

Hunter, Hon. Duncan, a Representative from California, Ranking 
  Member, Committee on Armed Services............................     3
Skelton, Hon. Ike, a Representative from Missouri, Chairman, 
  Committee on Armed Services....................................     1

                               WITNESSES

Davis, Col. Morris D., USAF, Former Chief Prosecutor, Office of 
  Military Commissions (2005-2007)...............................    14
Katyal, Neal K., Paul and Patricia Saunders Professor of National 
  Security Law, Georgetown University Law Center.................    10
Klingler, Richard, Partner, Sidley Austin LLP....................    12
Oleskey, Stephen H., Partner, Wilmer Cutler Pickering Hale and 
  Dorr LLP, Counsel for the Guantanamo Prisoners in Boumediene v. 
  Bush...........................................................     7

                                APPENDIX

Prepared Statements:

    Davis, Col. Morris D.........................................   102
    Katyal, Neal K...............................................    74
    Klingler, Richard............................................    91
    Oleskey, Stephen H...........................................    55

Documents Submitted for the Record:

    [There were no Documents submitted.]

Witness Responses to Questions Asked During the Hearing:

    [There were no Questions submitted during the hearing.]

Questions Submitted by Members Post Hearing:

    [There were no Questions submitted post hearing.]
              IMPLICATIONS OF THE SUPREME COURT'S BOUMEDI-
 ENE DECISION FOR DETAINEES AT GUANTANAMO BAY, CUBA: NON-GOVERNMENTAL 
                              PERSPECTIVE

                              ----------                              

                          House of Representatives,
                               Committee on Armed Services,
                          Washington, DC, Wednesday, July 30, 2008.
    The committee met, pursuant to call, at 10:04 a.m., in room 
2118, Rayburn House Office Building, Hon. Ike Skelton (chairman 
of the committee) presiding.

 OPENING STATEMENT OF HON. IKE SKELTON, A REPRESENTATIVE FROM 
        MISSOURI, CHAIRMAN, COMMITTEE ON ARMED SERVICES

    The Chairman. Our committee will come to order.
    Two hundred and twenty years ago, one of our founding 
fathers, Alexander Hamilton, warned that the imprisonment of 
individuals in distant or unknown locations without due process 
is a very dangerous engine of arbitrary government.
    To guard against the tendencies of such governments, 
Hamilton advocated for the centuries-old power of British 
courts to order wardens to bring prisoners before it, so that a 
judge as a neutral third party could inquire into the basis for 
continued detention. This is the power of habeas corpus, or 
what became known as the ``Great Writ.''
    The Military Commissions Act (MCA) of 2006, which was 
enacted in the last Congress, stripped our federal courts of 
this bulwark of our Constitution. As a result, the 
Administration received the green light to be jailer, judge, 
and jury, and it gladly revved its engine.
    The engine roared until the highest court in our land 
determined that the price of fuel for that engine was more than 
our Constitution could bear. Last month, the Supreme Court, in 
a five-to-four opinion, decided that the detainees who were 
being held at the U.S. Navy station in Guantanamo Bay, Cuba, do 
have the habeas corpus privilege under the suspension clause of 
the Constitution and that Section 7 of the Military Commissions 
Act is unconstitutional.
    As a former prosecutor, it is gratifying to know that the 
federal courts will resume their traditional role of ensuring 
that only the corrupt remain behind bars.
    While I still believe the current military commissions 
system has some other significant weaknesses, this ruling of 
the court will help by ensuring that any commission ruling 
which is designed to bring terrorists to justice can better 
withstand judicial scrutiny, for certain convictions must go 
hand-in-hand with tough prosecution.
    In addition to the now largely addressed habeas issue, I 
have repeatedly identified six other potential unlawful defects 
in the current military commissions framework.
    First, the Military Commissions Act may violate the 
exceptions clause under Article III of the Constitution by 
impermissibly restricting the Supreme Court's review.
    Second, it is questionable whether the Supreme Court would 
uphold a system that purports to make the President the final 
arbiter of the Geneva Convention.
    Third, the provisions regarding coerced testimony may be 
challenged under our Constitution.
    Fourth, the act contains very lenient hearsay rules, which 
rub up against the right of the accused to confront witnesses 
in evidence, as guaranteed by the Constitution.
    Fifth, the act may be challenged on equal protection and 
other constitutional grounds for how it discriminates against 
the detainees for being aliens.
    Last, Article I of the Constitution prohibits ex-post-facto 
laws, and that is what this act may have created.
    Although I don't anticipate that all of these issues will 
be resolved before high-value detainees, such as Khalid Sheikh 
Mohammed, self-confessed mastermind of 9/11, go to trial, I 
have confidence that the courts and we here in our Congress 
will be deliberate and decisive, rather than recklessly 
headstrong on how we approach these very difficult questions. 
We must make sure that the verdicts of the military juries 
stick.
    I look forward to hearing from our witnesses today.
    We have as our witnesses in front of us Stephen Oleskey, a 
partner in Wilmer, Cutler, Pickering, Hale, and Dorr, and has 
represented six Bosnian Algerian men who have been detained at 
Guantanamo since 2002. Mr. Oleskey was awarded the 2007 
American Bar Association Pro Bono Publico Award, largely 
because of his work on habeas corpus.
    Would you raise your hand? We will know who is who. There 
you are. Thank you very much.
    Next witness: Neal Katyal is a Saunders professional in 
national security law at Georgetown University Law School. In 
Hamdan v. Rumsfeld, he successfully argued before the Supreme 
Court that the Military Commissions Act, which predated the 
Military Commissions Act, were unconstitutional.
    Would you raise your hand? Just want to thank you.
    Richard Klingler, who served as the National Security 
Council's general counsel and legal adviser from 2006 to 2007 
and is a partner in the law firm of Sidley Austin.
    Thank you.
    Mr. Morris Davis, colonel in the United States Air Force, 
although he is testifying as a civilian while on terminal 
leave. Colonel Davis was formerly the chief prosecutor for the 
Office of Military Commissions.
    We certainly appreciate your being with us and giving us 
your thoughts on this highly important issue.
    Ranking Member Duncan Hunter.

    STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE FROM 
    CALIFORNIA, RANKING MEMBER, COMMITTEE ON ARMED SERVICES

    Mr. Hunter. Thank you, Mr. Chairman. And thanks for holding 
this important hearing.
    And I would simply note that Alexander Hamilton, however, 
never recommended that habeas be given to prisoners of war 
(POWs). In fact, the habeas rights that have been directed by 
the court's decision are rights that terrorists have at this 
point, which no American soldiers have.
    Over the last couple of years, this committee has spent a 
lot of time focusing on our detainee policy for the global war 
on terrorism. And the policy that the committee advanced took 
into account that this war against terror has produced a new 
type of battlefield and a new type of enemy.
    In the last Congress, we worked hard to pass the Detainee 
Treatment Act (DTA) and the Military Commissions Act, MCA, 
ensuring that the United States is able to detain, interrogate, 
and try terrorists.
    We had a practical problem that we had to address, this new 
type of war that doesn't involve particularly uniformed 
adversaries on the battlefield, but nonetheless very deadly 
adversaries. And we had to do so in a manner that is consistent 
with the Constitution and the international rules of war.
    As the attorney general recently remarked about the DTA and 
the MCA, the Detainee Treatment Act and the Military 
Commissions Act, and he said, ``These laws give more procedural 
protections than the United States or any other country, for 
that matter, had ever given to war-time captives, whether those 
captives were lawful soldiers in foreign armies or unlawful 
combatants who target civilians and hide in civilian 
populations.''
    And, Mr. Chairman, I just asked the staff, as we kick this 
thing off, to give me the list of procedural protections that 
we gave to accused terrorists when we put this bill together. 
Let me just go over these because I think this is important.
    The right to counsel, none of our POWs have that. The 
presumption of innocence, POWs don't have that. Proof beyond a 
reasonable doubt, opportunity to obtain witnesses and other 
evidence, right to discovery, exculpatory evidence provided to 
defense counsel.
    Statements obtained through torture are excluded. 
Classified evidence must be declassified, redacted or 
summarized to the maximum extent possible. Statements allegedly 
obtained through coercion are only admissible if the military 
judge rules that the statement is reliable and probative. A 
certified, impartial judge will preside over all proceedings of 
individual military commissions.
    The U.S. Government must provide defense counsel, including 
counsel with the necessary clearances to review classified 
information on the accused terrorists they have. In capital 
cases, the military commissions' 12 panelists must unanimously 
agree on the verdict, and the President has a final review.
    Panel votes are secret ballot, which ensures panelists are 
allowed to vote their own conscience. Right to appeal to a new 
military--a new court, a military commissions review, and the 
Court of Appeals for the District of Columbia, and the right 
against double jeopardy.
    Those, gentlemen, were derived from our scrutiny of other 
councils that were similar, tribunals, including Nuremberg, 
Rwanda, and others. And I think you could accurately say that 
we actually gave more rights to accused terrorists than any 
councils, any tribunals ever assembled.
    If you have got some others that give more rights to 
accused terrorists, I would like to hear about it. And if you 
don't think that list of rights is long enough, I would like to 
know what you think we should--what additional rights we should 
give.
    And once again, the right to habeas is a right that no 
American soldier enjoys.
    This is a delicate and carefully balanced framework, agreed 
to by the large majorities in both Houses of Congress, and it 
was thrown into question as a result of the recent Supreme 
Court decision in Boumediene. And in a deeply divided opinion, 
a five-to-four majority made the unprecedented decision to 
afford a constitutional right of habeas corpus on alien enemies 
detained abroad by our military forces in the course of an 
ongoing war.
    And while I disagree with the court's opinion, the decision 
is now the law of the land. The challenge before the committee 
today is clarifying the implications of the Supreme Court 
decision.
    Though some of our panelists today advance the argument 
that the Supreme Court decision suggests other constitutional 
infirmities with the Military Commissions Act that warrant 
congressional action, I continue to believe that absent an 
explicit decision by the court that the commissions process is 
unconstitutional, the trials should go forward without 
congressional interference.
    It is important to note that the majority in Boumediene 
addressed the process for status determinations regarding 
detention. The court was silent with respect to commissions.
    Currently there are 20 commissions in the works, and the 
first trial has just commenced. Under the MCA, each of the 
accused will have the right to appeal a guilty verdict to the 
Court of Military Commission Review, to the Court of Appeals 
for the D.C. court circuit, and then to the Supreme Court.
    I encourage the committee to heed the underlying principle 
of Chief Justice Roberts' dissent in Boumediene: ``We should 
not rush to judgment on the constitutionality of the 
commissions until the process is complete and the trials have 
exhausted their reviews.''
    As we meet today, the case against the 9/11 conspirators is 
moving forward. As the Congress intended, the U.S. is in the 
process of bringing those responsible for the attacks on the 
World Trade Center and the Pentagon to justice. Congress should 
exercise discretion.
    While Boumediene did not reach the issue of military 
commissions directly, it did raise a host of issues related to 
the process required to detain an individual the military 
believes to be a terrorist.
    Moreover, the basis for which the court determined that 
detainees in Guantanamo have a constitutional right raises 
questions as to whether the court's rationale could extend to 
other places where the military holds detainees, like Iraq and 
Afghanistan.
    I share Justice Scalia's concern that, absent congressional 
action, the policy for handling enemy prisoners in this war 
will ultimately lie with the branch that knows the least about 
the national security concerns the subject entails. I believe 
these are matters best left to political branches to decide.
    So what policy matters are put into question by Boumediene 
that should not be left to the court to decide? Attorney 
General Mukasey's recent speech on the subject highlights six 
critical areas that need congressional action.
    First and most important, Congress should make clear that a 
federal court may not order the government to bring enemy 
combatants into the United States. Even under the current 
system, we have released detainees that have resurfaced on the 
battlefield and engaged in armed conflict.
    I share Justice Scalia's concern that, post-Boumediene, the 
number of enemy returned to combat will increase. And I remind 
my colleagues that we have had a number of people who were 
released from Guantanamo who showed up on the battlefield 
again, attempting to kill American soldiers.
    Second, it is imperative that the proceedings for these 
enemy combatants be conducted in a way that protects how our 
Nation gathers intelligence and what that intelligence is.
    Attorney General Mukasey cites a terrorism case he presided 
over when he sat on the federal bench where the government was 
required by law to hand over to the defense a list of 
unindicted co-conspirators. This list found its way through the 
lawyers to Osama bin Laden in Khartoum.
    Third, Congress should make clear that habeas proceedings 
should not delay the military commission trials of detainees 
charged with war crimes. Fortunately, one federal judge has 
already ruled on this matter, deciding that the trial should go 
forward, but this question is still at issue. The victims of 
September 11th should not have to wait any longer to see those 
who stand accused face trial. That is what he said.
    Fourth, Congress should re-affirm that, for the duration of 
the conflict, the United States may detain as enemy combatants 
those who have engaged in hostilities or purposefully supported 
al Qaeda, the Taliban, and associated organizations. Large 
majorities of this Congress support supplemental spending bills 
that pay for the war and allow for the continued fight against 
al Qaeda, yet there are judges who question whether there is 
still authorization to detain. We should put any doubt to rest.
    Fifth, Congress should ensure that one district court takes 
exclusive jurisdiction over these habeas cases and should 
direct that common legal issues be decided by one judge in a 
coordinated fashion. It is simply absurd to have the rules of 
the game change from one detainee's case to the next.
    Last, Congress should make clear that the detainees cannot 
pursue other forms of litigation to challenge their detention. 
Simply put, detainees should not have two bites at the apple. 
Now that they will receive habeas review, there is no reason 
for the D.C. circuit to review status determinations also.
    At stake here is whether this Congress and this committee 
in particular will allow the slow creep of lawfare to replace 
warfare. Our men and women in uniform are trained in armed 
conflict. The battlefield is not a place for a crime scene 
investigative unit.
    And I can recall, Mr. Chairman, when we had one of our 
hearings on the proposed Detainee Treatment Act and we asked 
one of our very experienced litigators, one of our lawyers, in-
service lawyers who understood the Uniform Code of Military 
Justice (UCMJ), and a number of people were saying, ``Let us 
apply the UCMJ to detainees on the battlefield.''
    And we asked that particular attorney whether that would 
mean that when a Marine squad saw a terrorist shoot at him on 
the battlefield in Afghanistan, he would then have to give him 
his Miranda rights, as he interrogated him at the Humvee. And 
the answer was, in that lawyer's opinion, yes, he would have to 
do that, leading to the question of whether we were going to be 
able to assign lawyers to each squad of Marine combatants.
    So I think this is an issue that we should look at very 
clearly from the perspective of people on the battlefield.
    As the attorney general recently argued, military personnel 
should not be required to risk their lives to create the sort 
of arrest reports and chain-of-custody reports that are used 
under very different circumstances by ordinary law enforcement 
officers in the United States. Battlefields are not an 
environment where such reports can be generated without 
substantial risk to American lives.
    Finally, Mr. Chairman, it is the battlefield that this 
committee needs to keep in mind here. We are the Armed Services 
Committee. We protect members of the Armed Services and try to 
make sure we have policies that allow them to execute their 
very difficult mission with a modicum of safety.
    My greatest concern, in light of this recent Supreme Court 
decision, is its potential effect on operations in Iraq and 
Afghanistan. We detain thousands of detainees in Iraq and 
hundreds in Afghanistan. Detention is a fundamental component 
of warfare. It keeps combatants off the battlefield and 
provides actionable intelligence.
    We can't hamper our warfighters by providing them with the 
perilous choice of releasing detainees or complying with 
process requirements of the criminal justice system that are 
impossible to comply with on the battlefield.
    In the past, I would have thought such a concern was 
remote, bordering on paranoia. However, as we meet today, 
detainees in Afghanistan have filed petitions for habeas relief 
in U.S. courts.
    As one editorialist recently pointed out, the Supreme Court 
rejected the concept that court jurisdiction is limited to 
sovereign American territory and could extend not just to 
captives at Guantanamo, but all detainees abroad. And I think 
this is simply untenable.
    So, Mr. Chairman, thank you for holding this very important 
hearing today. I look forward to the testimony of our 
witnesses.
    The Chairman. I thank the gentleman.
    We are extremely fortunate to have the witnesses we have on 
this panel. And we look forward to hearing from you. I hope I 
don't mispronounce your name as I call on it, but let me try.
    Stephen Oleskey, did I get it? All right. Get the----
    Mr. Oleskey. Yes, you did, Mr. Chairman. Thank you.
    The Chairman. Okay. With that, we will call on you first, 
so we hope you will summarize your testimony. We on the 
committee are governed, as you know, by the five-minute rule, 
and we will proceed.

    STATEMENT OF STEPHEN H. OLESKEY, PARTNER, WILMER CUTLER 
    PICKERING HALE AND DORR LLP, COUNSEL FOR THE GUANTANAMO 
                PRISONERS IN BOUMEDIENE V. BUSH

    Mr. Oleskey. Thank you, Mr. Chairman, Ranking Member 
Hunter, members of the committee.
    I have been since July 2004 co-lead counsel in the case 
which the Supreme Court decided on June 12th, Boumediene 
against Bush. My clients, as the chairman mentioned, were 
arrested at the behest of the United States in Bosnia in the 
fall of 2001, despite the fact that the Bosnians had no 
evidence----
    The Chairman. Could you get just a little closer to the 
microphone?
    Mr. Oleskey [continuing]. Despite the fact that the 
Bosnians had no evidence to arrest them, were investigated 
thoroughly by the Bosnia system, with the cooperation of the 
United States, and then ordered released in January 2002.
    However, instead of being released, they were turned over 
again at the demand of the United States to our forces there 
and flown to Guantanamo, where they have been since January 20, 
2002. So they are now completing six and a half years in 
Guantanamo without charge or a hearing.
    Our case was originally dismissed in January of 2002. 
Another parallel case was ordered to go forward. Both cases 
then went up through the appellate system. While that was 
happening, this Congress--the previous Congresses passed first 
the Detainee Treatment Act of 2005 and then the Military 
Commissions Act of 2006, both of which you have referred to in 
your opening remarks.
    Then, in 2006, the Supreme Court held in the Hamdan case 
that habeas had not been stripped or taken away by the Detainee 
Treatment Act and habeas could go forward.
    Thereafter, the Congress passed the Military Commissions 
Act, which dealt both with military commissions and with the 
status of habeas corpus for the detainees in Guantanamo who had 
been characterized as enemy combatants. And that law appeared 
to say on its face that there could be no habeas corpus rights 
to be pursued by men designated as enemy combatants through the 
military Combat Status Review Tribunal, or CSRT, a design which 
was established in 2004.
    Our clients and others then challenged that habeas-
stripping provision both in the circuit court and in the court 
of the--and in the United States Supreme Court, resulting in 
the Boumediene decision of June 12th.
    That decision holds for the first time that Congress has 
unlawfully suspended the writ of habeas corpus provided in 
Article I, Clause 9 of the Constitution, because, in the 
circumstances existing in Guantanamo, the court found that 
habeas rights ran there and could be invoked by those 
prisoners, a decision that was foreshadowed in the Rasul and 
Hamdi decisions of 2004, also by the Supreme Court.
    Now, the suspension clause states that the privilege of the 
writ of habeas corpus may not be suspended, except when in 
times of rebellion or invasion the public safety may require 
it. That is bedrock. It is in the body of the Constitution. It 
was so important to the Founders that they didn't wait for a 
Bill of Rights. They put it as a limitation on the power of the 
Executive and of the Congress right in the body of the 
Constitution.
    The Supreme Court then found in Boumediene that prisoners 
could claim habeas corpus despite the fact that the Cuban 
government retains legal sovereignty over the United States' 
base there because the United States has had total control and 
jurisdiction over that 45-mile enclave since the lease of 1903 
under which we obtained the right in perpetuity to hold that 
base as a military facility for the United States.
    The Supreme Court also found that the prisoners' alien or 
foreign status was not a part of their invoking habeas corpus 
in the context of Guantanamo, in view of the Framers' intent in 
enshrining habeas corpus in the body of the Constitution and 
the Supreme Court's history of construing some fundamental 
constitutional rights as applying outside the United States, 
depending on particular facts and circumstances, that is a 
history that goes back over 100 years.
    Since there was no congressional finding in these cases of 
rebellion or invasion, the Supreme Court concluded there was no 
lawful basis for Congress to suspend habeas corpus for the 
approximately 275 men remaining in Guantanamo.
    Then the court examined whether the statutes that you 
enacted, particularly the Detainee Treatment Act and the 
habeas-stripping provision of the Military Commissions Act of 
2006, together provide an adequate substitute or an acceptable 
remedy for habeas, which it found had been stripped.
    The court found that these congressional remedies were not 
adequate substitutes because the underlying process in 
Guantanamo, unlike a trial in federal court, a criminal trial 
or another adversarial proceeding, was fundamentally not 
adversarial. There was no evidence, no classified evidence made 
available to anyone there to defend himself. No one had 
lawyers. They had limited ability to call witnesses and offer 
documents. And the government evidence was presumed valid.
    The only review that Congress allowed of this was a limited 
review, an administrative review, essentially, a record review 
by the Court of Appeals in Washington, which could not make new 
fact-finding, unless a federal habeas court, which could not go 
beyond the record from Guantanamo, which was this extremely 
non-adversarial record that resulted from a process created by 
the Defense Department in 2004.
    In effect, this Court of Appeals would be reviewing a 
baked-in record with many procedural deficiencies that the 
court found would not begin to provide anything approximating 
fair or due process. For example, there would be no ability to 
challenge the legal authorization for detention, which the 
Administration has always asserted is found in the 
Authorization for Use of Military Force resolution of Congress 
in September of 2001.
    There is no authority in the district court to order 
conditional release of any prisoner found to be entitled to the 
grant of habeas corpus. A federal district court can order a 
conditional release. I say that release is conditional because 
that is the word the Supreme Court used.
    And what the court was saying was that, even if someone has 
ordered release, it is still up to the political branches--in 
this case, the Executive--to negotiate their return to the 
country from which they were taken or to some other country 
which is willing to take them.
    And as the committee may be aware, there are a number of 
men who the Defense Department itself has cleared, has said are 
not enemy combatants or are no longer enemy combatants, who are 
awaiting in Guantanamo for some country to be willing to take 
them.
    The United States has said properly that no one would be 
sent back at this time to a country where they will be tortured 
or mistreated, for example, the Chinese Uyghurs we are not 
willing to return to China for that reason. So they are 
actually being held, many of them, as cleared men, but with no 
place to go.
    So those are the deficiencies that the Supreme Court found 
in the existing process and why it found that the circuit court 
process for limited review that Congress enacted was not 
sufficient in view of the constitutional entitlement of these 
men to some fair process.
    It is correct that the Supreme Court left various details 
about how the habeas trials would be conducted to the federal 
district court in Washington, right down the street in the 
Prettyman Courthouse, but this result that experienced Article 
III federal judges, sitting in the trial court, will now do 
their jobs and conduct habeas trials is unremarkable and 
scarcely a justification, let alone one rising to a necessity, 
for additional congressional action with respect to habeas 
corpus at this time.
    Former Chief Judge Hogan is presiding over the bulk of 
those cases which are before him on remand from the Supreme 
Court in the short time since June 12th. He has had a number of 
hearings, has had briefings, and has begun to issue orders.
    The balance of the cases are before Judge Richard Leon, 
including my case. He has also held a number of hearings, is 
beginning to issue orders, and has stated publicly that he 
intends to have all the cases before him, involving 
approximately 25 prisoners, completely resolved and final 
orders issued by the end of calendar 2008.
    Both judges are consulting closely, they have assured us, 
in meeting the Supreme Court's mandate to move these cases 
expeditiously. These cases are heavily fact-intensive and, in 
my view, would be difficult for Congress to weigh in on with 
respect to habeas at this time because the facts and 
circumstances are so different among the varying cases.
    For example, as I mentioned, my clients were arrested not 
on a battlefield, but in a friendly country, Bosnia, where they 
were working, living with their families, and not with any 
criminal record or any indication that they would be 
terrorists. Other people were arrested in Africa, other places 
in the world far from Afghanistan or Iraq.
    Moreover, the enactment of both the DTA and the MCA with 
respect to habeas has caused extensive delays already in 
resolving these cases, as the court of appeals here in 
Washington sought additional briefing and argument each time on 
the significance of these acts to the pending appeals. 
Therefore, the appeals took from early 2005 until the middle of 
2007 to resolve at the Court of Appeals level and, obviously, 
until June of 2008 to resolve at the Supreme Court level.
    Given the recognition of Secretary Rice, Secretary Gates, 
many others in the Congress and the Government of the great 
damage done to U.S. prestige and reputation by our perceived 
failure to give the 275 men in Guantanamo any fair hearing, 
despite the passage of six and a half years, it would be my 
suggestion that Congress stay its hand at this time with regard 
to any further actions concerning habeas and let the 
experienced federal trial judges down the street at the 
Prettyman Courthouse do their job, which is at long last to 
review the specific individual facts concerning these 6--these 
remaining 275 men to determine which should be held and which 
should be ordered conditionally released.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Oleskey can be found in the 
Appendix on page 55.]
    The Chairman. Thank you so much.
    Now, you all correct me if I mispronounce your name. 
Katyal.
    Mr. Katyal. Perfect.
    The Chairman. I got it?
    Mr. Katyal. That is perfect.
    The Chairman. Okay, please.

    STATEMENT OF NEAL K. KATYAL, PAUL AND PATRICIA SAUNDERS 
 PROFESSOR OF NATIONAL SECURITY LAW, GEORGETOWN UNIVERSITY LAW 
                             CENTER

    Mr. Katyal. Thank you, Chairman Skelton, Representative 
Hunter, and members of the committee.
    The last time I was before your committee was in March of 
last year. And as I was preparing for today, I was reminded of 
your opening words, Chairman Skelton, at that hearing. You 
said, ``Last year, when Congress passed the MCA, I argued that 
the most important task was to design a system that could 
withstand legal scrutiny. There are at least seven potential 
constitutional defects.''
    ``First, it seems clear to me and many others that the act 
may be unconstitutionally stripping the federal courts of 
jurisdiction over habeas cases.''
    Your opening statement, like the one you made today, went 
on to list a number of infirmities, including violations of the 
Geneva Conventions and equal protection, as ex post facto, 
confrontation, and exceptions clause problems under our 
Constitution.
    And you concluded, ``Providing for expedited review by the 
Supreme Court of these seven issues continues to be important. 
If the justices find the Military Commission Act includes 
constitutional infirmities, it is likely that known terrorists 
could receive a get-out-of-jail-free card or have their death 
sentences reversed.''
    Chairman Skelton, what you said back in 2007 looks 
prophetic now in 2008. We stand now with that very act 
invalidated on the very grounds you mentioned: stripping habeas 
corpus, a part of Anglo-American jurisprudence since the Magna 
Carta of 1215.
    Even before 2007, during those hasty Military Commission 
Act debates of 2006, many warned the Administration that, if 
they rushed to implement their proposed legislation, they would 
accomplish very little because that legislation had 
constitutional infirmities and courts would strike it down.
    But the Administration's defenders reassured Congress that 
the Constitution did not apply to Guantanamo and not to worry. 
That legal advice was always dubious, and the Supreme Court put 
an end to it.
    In the Boumediene decision last month, the court stated 
that political branches cannot switch the Constitution on and 
off as they please. Our basic charter cannot be contracted away 
like this, they said.
    And so here we are again, nearly seven years after the 
horrible 9/11 attacks, with only half of a single trial 
completed at Guantanamo and the Military Commission Act already 
struck down in part by our highest court.
    Now some are proposing yet again another rushed proposal to 
respond to the new court decision. The proposals are legion. 
Some would create a national security court; others would 
centralize litigation in a few judges; and still others would 
try to overhaul the military commission process.
    I support many of these proposals. I think the military 
commissions created in 2006 are deficient and unlikely to 
survive judicial scrutiny.
    The act's foundational presumption in 2006 was that the 
Constitution did not apply to Guantanamo and so the trials need 
not have even basic rights guaranteed by the Constitution, such 
as the right of a defendant not to have coerced testimony used 
against him.
    This system is going down, and it is right and proper for 
this body to put commissions on hold as soon as possible to 
develop appropriate, constitutionally balanced legislation.
    I am also a believer, to the chagrin of some, in a national 
security court to authorize a very limited preventative 
detention system for individuals who truly are unable to be 
tried in military or civilian court. I have been studying such 
a court for well over a year now, and the one thing I can say 
with certainty is that it is a very difficult undertaking.
    Who will the judges be? Who will the defense lawyers be, if 
any? How long will the detention periods last? Will there be 
periodic review? What evidence is going to come in? Who will be 
subject to the court's jurisdiction? Will there be appeals?
    There are hundreds of different models from which to 
choose. And yet each of them will differ from our traditional 
system of justice.
    Americans take pride in our criminal justice system. And 
our system works best when we convict terrorists in it. We 
showcase the rule of law and contrast it with the despicable 
world of the enemy, who lacks respect for our way of life and 
our values.
    If we are to modify this system, we should do so cautiously 
with appreciation for the risks involved. That is why, moving 
forward, the most important line in Boumediene belonged not to 
the majority, but to the dissent by Chief Justice John Roberts.
    He said, ``After the court in 2004 gave Guantanamo 
detainees habeas corpus rights, Congress responded 18 months 
later and cannot be faulted for taking that time to consider 
how best to accommodate both the detainees' interests and the 
need to keep the American people safe,'' cannot be faulted for 
taking that time.
    The very worst time, it occurs to me, to contemplate such 
changes is a few months before an election, particularly when 
both Presidential candidates have announced that they will 
close Guantanamo. A rush to judgment runs the risk of creating 
slogans, not sustainability. That is exactly what happened in 
2006 with the Military Commission Act.
    We need a better plan than simply looking tough if we want 
to demonstrate to our courts and to the world that we are 
serious about terrorism. This country desperately needs and 
deserves a serious inquiry, perhaps catalyzed by a bipartisan 
national commission to examine whether a national security 
court is necessary and, if so, what it should look like.
    We have spent far too many years with intemperate solutions 
that have gotten us nowhere. Many warned the Administration 
that they needed a plan for the day after the Supreme Court's 
highly predictable decision to restore basic habeas corpus 
rights to detainees, but the Administration stubbornly clung to 
notions of Executive power that the Supreme Court in Boumediene 
eviscerated.
    If we rush into legislation today, we will need yet another 
plan for the next predictable day after.
    Thank you.
    [The prepared statement of Mr. Katyal can be found in the 
Appendix on page 74.]
    The Chairman. I thank the gentleman.
    I think I can pronounce this next one. Mr. Klingler. Did I 
get it? Okay.

   STATEMENT OF RICHARD KLINGLER, PARTNER, SIDLEY AUSTIN LLP

    Mr. Klingler. Mr. Chairman, Ranking Member Hunter, members 
of the committee, I appreciate the----
    The Chairman. Be sure and--you are going to have to get 
real close to the microphone so that we will hear you.
    Mr. Klingler. Sorry about that. Can you hear me now?
    The Chairman. Yes, sir.
    Mr. Klingler. I appreciate the opportunity to address you 
today in my personal capacity regarding the important issues 
raised by the U.S. Supreme Court's decision in Boumediene v. 
Bush. I would like to emphasize a few points canvassed at 
greater length in my written testimony.
    Boumediene presents very significant issues that only 
legislation can address effectively.
    The Chairman. A little closer, please. Just speak right 
into it.
    Mr. Klingler. Better?
    The Chairman. Yes, stay close to it.
    Mr. Klingler. I will try to. Thank you.
    Federal courts have traditionally deferred very 
considerably to the executive branch and to Congress on 
military matters. Detaining persons the military has found to 
be enemy combatants is a central and legitimate component of 
the war on terrorists.
    As a unanimous Supreme Court indicated in a separate case 
just last month, the Constitution requires that the judiciary 
be as scrupulous not to interfere with legitimate Army matters 
as the Army must be scrupulous not to intervene in judicial 
matters.
    Boumediene abandoned that tradition of deference. It opens 
the door to an unprecedented era of judicial policymaking in 
military matters. At the same time, the decision provided 
almost no guidance to lower courts regarding the processes to 
be used in the newly required proceedings, the detainees' 
substantive rights, or the protections that must be afforded to 
military and security interests.
    The resulting problem is straightforward. In their new, 
undefined role overseeing military functions, civilian judges 
are likely to draw too directly on processes designed to 
protect U.S. citizens in traditional criminal proceedings. They 
are unlikely to appreciate how their decisions affect national 
security policy or the conduct of military operations.
    The principal problem created by the decision is not, I 
believe, with the military commission trials. Assertions of 
equal protection in international law difficulties are 
considerably overstated on the merits and have already been 
presented to federal courts and will be presented to them again 
upon review of any convictions.
    Some portray the issue as simply ensuring that the military 
holds people at Guantanamo who actually threaten Americans. The 
actual issue is far broader and more complex. The Boumediene 
decision is not limited by its terms to Guantanamo and has 
implications far beyond, including for Iraq and Afghanistan.
    The resulting judicial proceedings will allow judges to 
review the military's evidence supporting detention, but also 
to decide when and how the military is empowered to detain 
enemy combatants, as judges find and define them. They create 
open-ended litigation regarding counterterrorist capabilities.
    Particular issues extend to how to resolve overlapping 
judicial processes, how to protect sensitive information, and 
how to ensure that military resources aren't diverted from 
their core tasks. And in the end, judges may make decisions for 
reasons having nothing to do with the evidence of threat or may 
make mistakes leading to the release of persons who do, in 
fact, seek to kill American soldiers, civilians, and their 
allies.
    In these circumstances, Congress should fulfill the 
political branch's constitutional role. Legislation would 
create legal certainty and operational flexibility.
    The executive branch, through the attorney general, has 
requested legislation to protect military and security 
interests, and the judiciary, through the chief judge of the 
district court most burdened by the uncertainties of litigation 
surrounding habeas petitions, has very unusually welcomed 
guidance from Congress and indicated that ``such guidance 
sooner rather than later would certainly be most helpful.''
    More broadly, Congress has the opportunity to re-affirm the 
principles underlying the military's actions against 
terrorists. The nub of many of the judicial disputes is simply 
that some members of the judiciary and the bar do not believe 
that we are truly or appropriately at war against those who 
would use terror against our soldiers and this Nation, or they 
believe that time is--the threats we face to those we can 
manage through criminal-like processes.
    Assuming that Congress continues to support the military's 
counterterrorism efforts, re-affirming and clarifying the 
bounds of the Authorization for Use of Military Force (AUMF) 
would update that authorization in light of our increased 
knowledge of the foes we face.
    It would remind the court to the commitment of two 
coordinate branches to using all appropriate means to confront 
pressing threats to our national security. Doing so may even 
return the courts to a centuries-old tradition of deferring to 
the political branches in matters of military and foreign 
affairs.
    Thank you.
    [The prepared statement of Mr. Klingler can be found in the 
Appendix on page 91.]
    The Chairman. Colonel Davis.

     STATEMENT OF COL. MORRIS D. DAVIS, USAF, FORMER CHIEF 
     PROSECUTOR, OFFICE OF MILITARY COMMISSIONS (2005-2007)

    Colonel Davis. Thank you.
    Chairman Skelton, Mr. Hunter, members of the committee, 
thank you for allowing me to participate in the hearing today.
    Much of what I have to say this morning is based upon my 
two-plus years of experience as the chief prosecutor at 
Guantanamo Bay, Cuba. However, I am here speaking in my 
personal capacity, not on behalf of the Department of Defense 
(DOD) or the Department of the Air Force. And I think you would 
have figured that out in any event, but I wanted to make that 
clear.
    The Chairman. You are going to have to get closer, too, 
just like everyone.
    Colonel Davis. Yes, sir.
    For more than two years, I spent time inside the camp. I 
have sat down with some of the detainees. I have reviewed the 
evidence, both classified and unclassified. I led the 
prosecution for more than two years. In fact, the cases that 
are being tried today, the Hamdan case, I personally authorized 
and approved those charges.
    So I hope my experience and my observations will contribute 
to finding a credible way forward on how we deal with this 
important issue that in many ways defines who we are.
    I was privileged to serve for a quarter century as an Air 
Force judge advocate and to participate in the military justice 
system at almost every level and in a variety of different 
capacities. For most of my career, the military justice system 
operated in relative obscurity with little attention from the 
media, the public, or even Congress.
    Those of us who worked inside the military justice system 
always knew what a good system it was, but until the post-9/11 
era, when the military justice system gained some notoriety as 
a basis of comparison for the processes we would use to 
prosecute detainees, it was largely unknown and under-
appreciated.
    I was pleased that during the debate over the Military 
Commissions Act people from across the political and 
ideological spectrum referred to military justice as the gold 
standard of justice. Some of us knew that all along, but it was 
nice to see it recognized on a broad scale.
    The processes currently in place to deal with detainees, 
particularly those at Guantanamo Bay, Cuba, are being sold to 
the public as part of the ongoing war on terrorism. They are 
included in Title 10 of the United States Code, the section on 
Air Force, not Title 18. And they are supposedly wrapped under 
the military justice banner.
    In my view, what we are doing at Guantanamo Bay is neither 
military nor justice, and if this reflects what passes for 
military justice in 2008, I am glad my uniform is hanging in a 
closet. This isn't the military justice system I respected and 
admired for nearly 25 years.
    Over the past several months, I have written a number of 
articles, and given talks, and done interviews, and shared my 
observations with special interest groups, nongovernmental 
organizations (NGOs), think tanks, and some members of this 
body.
    The question of how we move forward to ensure the treatment 
of detainees and to begin to restore our reputation in the eyes 
of the world is an important issue. But with soaring gas 
prices, plunging home values, rising foreclosures, a looming 
record deficit, and wars in Iraq and Afghanistan, and all of 
that taking place within 100 days of an election, this probably 
isn't the number one issue on a lot of people's lists.
    I understand that. As someone about to be unemployed and 
with an interest-only adjustable-rate mortgage, it is probably 
not number one on my list either, but it should be on 
everybody's top 10 list.
    It is an issue that warrants thoughtful consideration now. 
And we shouldn't wait until after November 4th or January 20th 
to begin having this discussion.
    Now, I think the most beneficial use of our time today will 
be in answering your questions, so I am going to keep my 
comments relatively brief. However, there are a few points to 
keep in mind in discussing detainees at Guantanamo Bay.
    One thing I found in talking to different groups is 
apparently I am in the middle of the road. I tend to get hit by 
folks on either side. I tend to aggravate everybody because I 
think my views are neither left nor right.
    I think, first, it is important to recognize that there is 
an internationally recognized right during a period of armed 
conflict to indefinitely detain the enemy to keep him from 
inflicting harm on us and on others. To the best of my 
knowledge, there has never been and there never will be a date 
certain that we know when an armed conflict is going to end.
    Now, that is not to discount in any way the $64,000 
question of how we assess who is or is not the enemy, but some 
seem to argue and believe that unless we bring criminal charges 
or release a detainee within some prescribed period of time, 
that we have committed a foul. And that is just not the case.
    Second, the intelligence community wants to know what is 
going to happen in the future in order to prevent the next 9/
11. The law enforcement community wants to know what happened 
in the past to punish those responsible for the last 9/11.
    As you can see, the perspectives are in opposite 
directions, one being prospective and one being retrospective. 
Add to that that one agency operates in a very rigid and very 
visible environment where the rules are well-known, things like 
Miranda rights, speedy trial, chain of custody, search 
warrants, and such.
    The other operates in a very fluid and invisible 
environment, where the rules are generally secret. When you try 
to overlay the two communities, you get a lot of square peg and 
round hole problems. And in a nutshell, that is Guantanamo Bay, 
which began as an intelligence operation and largely is still 
to this day an intelligence operation, with any thought of some 
law enforcement or criminal prosecution process taking a back 
seat at best.
    Now, it is wonderful when those two conflicting communities 
overlap and dovetail, but that is seldom the case, and that is 
the real conundrum with Guantanamo Bay.
    Lloyd Cutler was a giant in the legal community, having 
served as White House counsel twice and as co-founder of one of 
the most prestigious law firms in the world. In 1942, when he 
was just beginning his career, he served as a prosecutor in the 
trial of the eight Nazi saboteurs, which took place not too far 
from where we are today, and which led to the Supreme Court 
decision in Ex Parte Kiernan.
    In December 2001, Mr. Cutler wrote an article in the Wall 
Street Journal drawing on his experience from more than 60 
years earlier. He said, ``How we prosecute the members of al 
Qaeda and their supporters will say as much about the American 
legal system as it does about al Qaeda.''
    Now, Mr. Cutler passed away in 2005, and I doubt if he was 
here today he would be pleased with what the past 80 months 
have said about the American legal system. We are better than 
that.
    Military commissions apply to only some of the detainees, 
certainly not the entirety. And my experience is pretty much 
limited to the military commission cases.
    Judge James Robertson, in his decision on July 18th denying 
Salim Hamdan's request for an injunction in the military 
commissions, said, ``The eyes of the world are on Guantanamo 
Bay. Justice must be done there, and it must be seen to be done 
there fairly and impartially.''
    Now, I believe the current system may do justice in some 
cases--perhaps in many cases--but we need a system that is 
capable of doing justice in all cases.
    There are, in my view, four main problems with the current 
military justice process. And I would stop to say that I 
believe that the Military Commissions Act was a commendable 
piece of legislation. And I still believe that. It was the 
implementation by political appointees after it had been passed 
by Congress, signed by the President where it was hijacked 
along the way.
    The four areas are, one, if the military commission is 
really a military commission, it should be under military 
control and free of political interference. Now, proponents 
argue that a commission is really, for all practical purposes, 
just like a court martial.
    Well, for a variety of reasons, the analogy to the court 
martial system does not fit. And I will give you one example. 
Since 9/11, the Army, the Navy, the Air Force, and the Marine 
Corps have conducted in excess of 50,000 court martials. To the 
best of my knowledge, each of those 50,000 court martials was 
convened by a military officer, not by a political appointee.
    So if the military commissions are just like a court 
martial, why are these the only Title 10 criminal proceedings 
convened by a political appointee who had never worn a military 
uniform a day in her life?
    Second, in the court martial system, the convening 
authority and his or her senior attorney, what we refer to as 
the staff judge advocate, has some oversight authority over the 
prosecutors. And it is that level of command involvement in the 
military justice system that is often cited as the greatest 
weakness in the court martial process.
    All of the international--all the comparable international 
tribunals that are sanctioned by the United Nations (U.N.) 
guarantee the independence of the prosecutors. Trying to 
explain what a convening authority is, is a difficult 
proposition, particularly to an international audience who is 
accustomed to that international model where the prosecutors 
are independent.
    Now, I thought language that Senator Lindsey Graham added 
to the Military Commissions Act at my request ensured that no 
one could try to influence the exercise of professional 
judgment by me or the prosecutors. And it aligned us more 
closely with the international model that would be more 
understandable to the international community, but it hadn't 
stopped some from continuing to try to influence the process.
    The military judge in the Hamdan case is Navy Captain Keith 
Allred. And he ruled that the legal adviser to the convening 
authority, Brigadier General Tom Hartmann, broke the law by 
engaging in unlawful influence over me and the prosecution in 
the Hamdan case. And he disqualified General Hartmann from any 
further involvement in the Hamdan case.
    Unlawful influence has been called the moral enemy of 
military justice, so many waited to see how the Department of 
Defense would respond to a finding that the legal adviser broke 
the law.
    What has happened since that finding that he broke the law 
has been nine more detainees have been charged. The 9/11 cases 
have been referred to trial. And General Hartmann is still in 
place and pressing ahead at full speed.
    Third, we have to make a commitment to open and transparent 
trials. Some closed sessions are inevitable, but that should be 
the exception and not the rule. I can tell you from firsthand 
experience that the evidence declassification process is time-
consuming and is frustrating, but it is necessary if we are 
going to have open trials.
    You can have speed, but if you have speed it comes at the 
expense of transparency. And as tainted as the process has 
become in the eyes of the world, I believe it is imperative 
that we take the time and the effort to make these trials as 
open and transparent as possible.
    In fact, I had often joked in the past that we should have 
these proceedings on Court TV, and I still think that might be 
a good idea.
    Finally, we must reject the use of evidence obtained by 
unduly coercive techniques such as waterboarding. Those 
techniques may produce useful intelligence, but they do not 
produce reliable evidence suitable for use in an American court 
of justice. If we condone it now, we forfeit the right to 
condemn it later when the shoe is on the other foot.
    Information obtained by convincing a man to say what the 
interrogator wants to hear or possibly die, which is really 
what waterboarding is, or the same as putting a gun to 
someone's head and saying, ``I am going to count to 10 and pull 
the trigger if you don't talk,'' is what the person on the 
other end believes.
    It doesn't matter if the gun is empty and there is no 
possibility of death or if the waterboarder is not going to 
drown the individual. The person on the other end doesn't know 
that, and he believes his choices are talk or possibly die. 
That practice has no place in an American court of justice, and 
it should be banned.
    In a speech delivered in April at West Point, Secretary 
Gates said, ``Listen to me very carefully. If as an officer you 
don't tell blunt truths, then you have done yourself and the 
institution a disservice.''
    Later, in June at a speech he gave at Langley Air Force 
Base, he said, ``None of the services easily accept honest 
criticism or scrutiny that expose institutional shortcomings. 
This is something I believe must change across the military.''
    Secretary Gates went on to say, ``When you see failures or 
problems, throw a flag. Bring them to the attention of people 
who can do something about it.''
    Mr. Chairman, members of the committee, I have thrown the 
flag and I have told blunt truth. As a result, my service has 
been characterized as dishonorable. I was denied a medal for my 
service as chief prosecutor. And I find that the truth not only 
sets you free; it also makes you largely unemployable.
    And that is fine. To me, it would be a disservice if I 
would put my head down, pressed ahead, and pretended everything 
was fine when it was not, and I have no regrets about doing 
what I did.
    Thank you for allowing me to be here today.
    [The prepared statement of Colonel Davis can be found in 
the Appendix on page 102.]
    The Chairman. We thank you for your testimony and for each 
of you and your excellent words of wisdom and advice for us.
    Colonel Davis, it is interesting to note your reference to 
the 1942 case. Of personal interest, there was a World War I 
soldier who stayed in the Army Reserve as a Judge Advocate 
General (JAG) officer by the name of Colonel Carl Ristine from 
my home town of Lexington, Missouri, and was quite a well-known 
lawyer in western Missouri.
    When the Second World War came along, he returned to active 
duty and was the lawyer for one of the two--I think his name 
was Dasch--who was not given the death penalty from the 1942 
commission.
    My recollection is that six of the eight German saboteurs-
to-be were given the death penalty, and that was carried out 
immediately. Two were not, as my recollection. And Colonel Carl 
Ristine represented the one.
    And a footnote: He was my father's mentor when my father 
graduated from law school. So it is really interesting that 
today in your testimony you mentioned it.
    Let me ask one question before I ask Mr. Hunter.
    Mr. Oleskey, could you address the suggested points that 
the attorney general made for or recommended for congressional 
action in response to the Boumediene case?
    Would you respond as to how--and I don't know if you have 
the list of them there in front of you--would you respond as to 
your thoughts on each of them--I think there are six of them--
please?
    Mr. Oleskey. I don't have a list in front of me, Mr. 
Chairman, but I am generally familiar with the attorney 
general's suggestions.
    The Chairman. Why don't you go ahead and tell us your 
thoughts?
    Mr. Oleskey. Absolutely. Essentially what he has suggested 
is that Congress step in and tell the federal courts how to 
conduct the habeas proceedings to decide what the burden of 
proof should be, to decide how to deal with classified 
evidence, and a lot of other issues that trial judges who hear 
habeas cases every day, coming out of the federal and state 
courts, normally do in reviewing and deciding habeas cases.
    As I stated in my remarks, the problem with that one-size-
fits-all approach is that no one sitting in Congress or in any 
advisory capacity over a habeas case is ever going to know 
enough about the facts that are at issue in a particular case 
because they are so varying and different and raise so many 
issues, to be able to devise a protocol that will work.
    So my view is that the federal courts have extensive 
experience dealing with these issues that are now presented by 
this ruling. It is only the ruling that is unusual, not the 
issues that have to be explored, which is, what is the basis to 
hold somebody indefinitely? What are their defenses? What are 
the facts that bear on that decision to hold? And what are the 
facts that bear on whether the person should be released?
    These are, if not garden variety issues, very common issues 
that federal habeas courts in every jurisdiction, represented 
by every one of you in the country, deal with, if not every 
day, then every week.
    So what happened with the MCA and the DTA, as we have all 
been saying in our various ways, were that some clarity was 
brought to some aspects of these military commission and habeas 
proceedings, but fundamentally we ended up with years of 
appeals that were foretold by many of us and many of you, 
resulting in delays from 2002, really, when the first case was 
brought, until 2008, so six and a half years of appeals just to 
get to the fundamental issue in each individual case of whether 
someone should be held further or should be released.
    Legislation, in my view, well-intentioned as it may be, is 
not going to clarify those circumstances. It is going to 
complexify and complicate those circumstances, delay the cases, 
lead to general appeals that are likely again to hold up all 
the cases.
    And, in contrast, Judge Leon and Judge Hogan are now moving 
these cases forward rapidly on schedules which they are very 
easily able to handle and establish. And the cases are going to 
be tried, it appears, in the relatively near future, certainly 
in my case is in front of Judge Leon.
    So I understand why the attorney general and the 
Administration say that, Mr. Chairman. But I don't think that 
the result will be anything that any of us will be proud of, as 
Mr. Davis and Mr. Katyal were saying about what has happened in 
the military commission area.
    The Chairman. Thank you. I should have read the attorney 
general's quick summary before asking you that question, Mr. 
Oleskey, but let me do that very quickly and then I will ask 
for brief comments from each of the other three panel members.
    One, prohibit the federal court from ordering the 
government to bring enemy combatants into the United States. 
Two, adopt procedural safeguards to protect the sources and 
methods of intelligence-gathering. Three, to ensure that habeas 
proceedings do not delay military commission trials of 
detainees charged with war crimes.
    Four, acknowledge explicitly that this Nation remains 
engaged in armed conflict with al Qaeda and the Taliban and 
associated organizations and reaffirm that, for the duration of 
the conflict against these groups, we may--the United States 
may detain enemy combatants.
    Fifth and last, establish the sensible procedures for 
habeas challenges going forward by ensuring that the one 
district court has exclusive jurisdiction over the proceedings.
    And, excuse me, there is a sixth one. Limit the ability of 
detainees to pursue other forms of litigation.
    So that is--those are the six recommendations made by the 
attorney general. Let me ask you if you have comments or 
thoughts on them. We will go right down the line.
    Mr. Oleskey. Let me just comment specifically, Mr. 
Chairman, on those six points then.
    The Chairman. Yes.
    Mr. Oleskey. Release in the United States--the Supreme 
Court was very clear, the law is clear that a habeas judge 
can't release anywhere. He can order a conditional release in 
this case or she can order a conditional release, subject to 
the decision by the executive branch about how to return and 
where to return the particular prisoner. So I think that is not 
a real issue, as I see it.
    In terms of classified evidence, Colonel Davis has referred 
to how the military commissions handle that. There is a federal 
statute that the Congress enacted, the Classified Information 
Procedures Act (CIPA) statute, that provides procedures for 
that. That has been done in every terrorist criminal trial I 
can think of. I don't think more legislation is needed on that.
    The ranking member commented on delaying the military 
commissions as not being in anybody's interest. I think we all 
agree with that. I can't see how further legislation at this 
time with cases going forward would not delay those cases and 
result in appeals. Others may differ.
    The President's right to detain enemy combatants is 
something spelled out in the Authorization for Use of Military 
Force resolution of the Congress on September 18, 2001. That is 
in the process of being worked out. As to what it means as to 
each detainee on a case-by-case basis, that is what has to 
happen.
    Each detainee has a different story, a different set of 
facts, and the government's right to detain them further will 
turn on where they fit in the scheme that you all outlined in 
general in that resolution. I don't believe that that needs 
further clarification at this time.
    Consolidation of cases, the Supreme Court said they should 
all be heard essentially in one court. They are all being heard 
in the district court right down the street, as I said, and 
they are all being consolidated for preliminary purposes before 
two judges who are ruling on all the general and common issues 
that are likely to arise.
    And then, as to multiple avenues for litigation, you all 
decided in 2005 and 2006 to allow a process for review of the 
Combatant Status Review Tribunals (CSRT). Most of us went 
forward and filed both habeas actions, which were doubtful 
until the Supreme Court ruled in June, and DTA cases. Most of 
us will probably pursue habeas cases for the reasons I stated 
in my opening remarks.
    There is no showing that anyone has abused the second 
avenue, the DTA avenue. There are lots of statutes that allow 
more than one claim and sometimes in more than one court. This 
is more a theoretical concern right now than a real concern, as 
I see it.
    The Chairman. Thank you.
    Mr. Katyal, your comments?
    Mr. Katyal. I support the idea of legislation in general. 
Our Founders in Article I, Section 8 gave this body, the 
Congress, the prerogative over legislation in this area.
    And I do think legislation is inevitable at some point, for 
reasons that I think Representative Hunter illustrated and also 
things that Justice Jackson said earlier in his famous 
Youngstown opinion, that legislation will put the program on 
more stable footing and produce a program that is more 
sustainable in courts and in the world's community.
    However, having said that, this does not seem right now to 
be the appropriate time for legislation for a couple of 
reasons. One is, we don't have any experience yet with how the 
federal courts are going to handle this.
    I think we should let the system play out a little bit, as 
Mr. Oleskey said, see how the federal courts are dealing with 
this. There is a system in place by very experienced judges. 
There isn't some overwhelming need right now to act. And then 
this body can be informed by that legislative--by that judicial 
experience.
    In addition, I am very worried about a rush to judgment in 
this area. We did that in 2006. Some people warned Congress 
that, if you do so, if the program is not going to be 
sustainable, it is going to be struck down, that is exactly 
what happened. And so I think, before acting again, we need to 
do this very carefully, with all the relevant information.
    Let me speak to one aspect of Attorney General Mukasey's 
comments, his third one, about clarifying the writ of habeas 
corpus should not delay military commission trials. I think 
that is a very dangerous idea.
    These military commissions are unprecedented. We have never 
had trials like this before in America. And I think anyone who 
listened to Colonel Davis' remarks a moment ago will understand 
just how different these trials are.
    The worst time to review the legality of these trials is 
after they have taken place. There are a lot of constitutional 
problems with the military commissions going on.
    And if, as I suspect, courts will invalidate that system 
down the road, you do run the prospect, as Chairman Skelton 
said last year, of terrorists going free or possibly having to 
be re-tried. That is a terrible way of meting out justice.
    Instead, we should do what Representative Skelton proposed 
before, which is expedite review over the military commission 
process. Let us make sure that system is legal, as its 
defenders say it is. If it is legal, let us have the trials. 
Let us have them go forward. If it is not, then let us have a 
new system come in and take place.
    I am very sympathetic to what Ranking Member Hunter said a 
moment ago, that the victims of 9/11 should not have to wait 
any longer for trials. Let us have real trials. Let us make 
sure they are on a stable footing and then have them, instead 
of have them be invalidated years after the fact.
    The Chairman. Thank you.
    Mr. Klingler was next on the list, and then Colonel.
    Go ahead, Mr. Klingler.
    Mr. Klingler. Thank you.
    If I could just address your question by picking up some of 
the comments that have been made, the notion that there are 
only garden-variety issues before the habeas courts I think is 
just a fantasy. The notion that there won't be years of appeals 
I think has no basis at all.
    The chief judge of the district has welcomed quick 
congressional guidance. Judge Hogan isn't processing cases; 
what Judge Hogan has done is request briefing, very extensive 
briefing from the government and from detainees' lawyers, on a 
whole range of open issues.
    What types of discovery must there be? How much classified 
and intelligence information does the government have to offer 
up? What standard? Is it clear and convincing? Is it some 
traditional standard regarding the government's showing that is 
required?
    What type of presumption, if any, does the government get? 
What kind of hearsay can be offered? What kind of witnesses can 
be pulled forth? Do they get to be called from Iraq and 
Afghanistan? Can the detainees personally participate? Are they 
going to be able to call other detainees as witnesses?
    All these are open, common issues that are being briefed 
right now. It is not as though the cases are being presented in 
the initial form.
    As to some of the particular issues, I mean, I have covered 
those in some of the written testimony. I would just address 
two briefly.
    The release in the United States point, I was initially 
somewhat less sympathetic to that point than to the others of 
the attorney general's. And then I found out that, in fact, 
some of the detainees'--one of the detainee's lawyers has, in 
fact, requested release in the United States, in the case of 
Parhat, was my understanding.
    As to the timing of the military commission trials versus 
habeas proceedings, I think the notion of final resolution, 
either through legislation or through court processes of the 
lawfulness of the military commission process, before we have 
even seen how they perform, before we have seen how the judges 
and how the appeal process works, that is going to be a 
tremendous range of delay.
    Legislation would take time to finally resolve any 
differences. And certainly the course that Professor Katyal 
would have of going into federal court and habeas proceedings 
to disrupt and delay the military commission trials is one that 
would just initiate a longstanding judicial process.
    And I think the judge who heard those arguments already 
that the professor has put forth didn't reject them on their 
merits, but appropriately abstained, pending the operation of 
the military trial process.
    Thank you.
    The Chairman. Thank you very much.
    Colonel.
    Colonel Davis. I guess two points. One is--my personal 
opinion is I think the Boumediene decision was wrongly decided. 
Of course, you know, it is the court's opinion that counts and 
not my own. My personal opinion is a foreign terrorist whose 
only connection to the Constitution is destroying it has no 
constitutional rights. The court disagreed, and it is their 
opinion that counts.
    So I disagree with the rationale, but if the result is that 
it gets folks to pay attention to the issue, then I can live 
with the rationale, if it gets a good result.
    My read of the Boumediene decision is what the court was--I 
think the court was very deferential to the executive branch. 
If you recall initially when Boumediene was filed, the court 
refused to hear it. Then, Colonel Steve Abraham came forward, 
who had sat on some of the CSRT proceedings and identified some 
defects, where in some cases the evidence was flimsy, and 
others, if the results wasn't what the leadership wanted, they 
just re-did it until they got the right result.
    And then, amazingly, the only time in my lifetime the court 
reconsidered and agreed to hear the Boumediene case, which to 
me--and then the decision itself--is an expression of a lack of 
confidence in the executive branch to do it right, that folks 
have a right to some meaningful review before they are locked 
up for in excess of 80 months.
    And I think the attorney general's comments were somewhat 
disingenuous, to kind of throw down the gauntlet and say 
Congress has got to fix this in the next couple of months, when 
the Administration has had 80 months since the President signed 
the order in November of 2001 to get this right. And they 
haven't gotten it right.
    It was frustrating over a year ago, when the court granted 
a review in Boumediene--about that same time, we had two cases 
down at Guantanamo (Gitmo), Qatar and Hamdan, where the judges 
in those cases dismissed charges for lack of jurisdiction 
because there was a disconnect in the wording--the 
jurisdictional language of the Military Commissions Act said we 
have jurisdiction over unlawful enemy combatants.
    The regulation for the CSRT process requires that tribunal 
to make a finding the individual is an enemy combatant, but not 
an unlawful enemy combatant. So we had a disconnect in the 
language.
    There were a number of us that proposed, since we had two 
problems--you had Boumediene, which was being heard by the 
Supreme Court. We had us thrown out of court out of the 
military commissions because of the defect in the 
jurisdictional language. Why not fix the CSRTs and do them 
right, which hopefully would allay the concerns of the Supreme 
Court and also fix the jurisdictional problem?
    But as tended to be the case quite often, there were a few 
people that--what I have described many times. I think it was a 
combination of arrogance and ignorance, that they knew the 
right way to do it and they didn't need any assistance with 
doing it right, so rather than fix the CSRTs, here we are, more 
than a year later, you know, with this mess, and the attorney 
general suggesting that you have got to fix it the next couple 
of months. And I think that is wrong.
    The Chairman. Colonel, thank you.
    Mr. Hunter.
    Mr. Hunter. Thank you, Mr. Chairman, again. And, gentlemen, 
thank you for your testimony.
    You know, again, I am looking at this bundle of rights that 
we went over, Senate and the House, when we put together the 
Detainee Treatment Act and the Military Commission Act, right 
to counsel, presumption of innocence, proof beyond a reasonable 
doubt, opportunity to obtain witnesses and other evidence, 
right to discovery, exculpatory evidence provided to defense 
counsel, statements obtained through torture are excluded.
    The classified evidence, I remember the exercise we went 
through, the difficulty of making sure that you maintain the 
secrecy of evidence, which nonetheless the accused has a right 
to confront, and we finally went through this exercise of 
redaction that would be utilized to try to make sure that they 
were given the fairest shot possible at being able to confront 
the evidence that was used against them.
    That went through a lot of iterations and a lot of analysis 
by counsel in the House and the Senate as we put this thing 
together. I am looking at the statements obtained through 
coercion are only admissible if the military judge rules that 
the statement is reliable and probative.
    Because most of these people come, while some of them--not 
all of them come from the battlefield situation, most of them 
do--the situation in which many of these statements are made is 
inherently coercive. And we had a--we obviously had to work our 
way through that.
    Certified impartial judge, we went to the--the question we 
were concerned about as to whether a--if you had military 
officers on the tribunal, whether you would have a vote for 
guilty by a junior officer on the basis that his superiors were 
watching him and were on the body with him. So we provided for 
the secret ballot. We did things that went far beyond what I 
saw as a standard of Nuremberg, Rwanda, and other councils.
    So my first question would be is, have you looked at this 
bundle of rights that we gave to the accused in the MCA? And 
what additional rights would you give to them?
    Mr. Katyal. Thank you very much, Ranking Member Hunter.
    I have looked at them. And they are the same rights largely 
as what the Administration said the last military commission 
system had in 2006. When I argued the Hamdan case before the 
Supreme Court, the solicitor general's brief listed the very 
rights you said, the right to counsel, presumption of 
innocence, opportunity to get evidence, right to discovery, the 
use of torture being excluded, the impartial judge, and so on, 
the provision of a defense counsel, and so on.
    That was all at page two of their brief and what the 
solicitor general opened his argument to the Supreme Court 
with.
    It wasn't enough. And it wasn't enough for one simple 
reason: It is not about the rights on paper. It is about, 
rather, what the system--its ultimate backdrop is.
    In both 2006 and now, there has been assumption that the 
Constitution does not protect the detainees at Guantanamo Bay 
and, because of that, these rights, while there on paper, wind 
up not being very much in practice.
    And that is what I think Colonel Davis was getting at when 
he said that the military justice system that he knows is the 
gold standard of justice and what is happening at Guantanamo 
Bay is neither military nor justice.
    I mean, this is a remarkable thing. We have been 
adversaries for two years on the very same case, the chief 
prosecutor and one of the defense attorneys, and yet I think 
you are hearing some agreement from the people who have 
experience in the system in telling you that the rights on 
paper aren't the rights that translate in practice.
    Mr. Hunter. Yes, but, counsel, what we have the power to do 
here is to write the law with the expectation it is going to be 
followed. Now, obviously, if those rights are not allowed, then 
that is reversible error and is something that can be 
corrected.
    But the point is--my question to you is, when we put this 
thing together, we looked at terrorist tribunals, and we looked 
at Nuremberg, and we looked at Rwanda, and we looked at these 
other tribunals. And we gave a larger package of rights, it 
appears to me--for example, in Nuremberg, I believe you only 
had one layer of appeal. Here you have got three layers of 
appeal.
    We gave a larger package of rights than these previous 
terrorist councils. So my question to you is, in what we have 
laid out in the law--because that is what we are dealing with. 
You have got a trial going forward right now and you have got 
20--as I understand--some 20 commissions gearing up to go, they 
are going to go with what I just laid out and what you just 
acknowledged are, in fact, this bundle of rights.
    So my question to you is, do you think that additional 
rights--do you think that these are inadequate and there are 
additional rights that should be in the commissions law?
    Mr. Katyal. Sir, we could have a debate about Nuremberg or 
Rwanda or the other tribunals. I certainly think that, for 
example, none of the other tribunals have such broad 
substantive offenses, such as conspiracy. That is something 
that Nuremberg rejected, yet it is being used in most of those 
20 cases today.
    But my fundamental point, Ranking Member Hunter, is that we 
don't live in Rwanda and we don't live in Nuremberg. We live in 
the United States of America. And in the United States of 
America, we are governed by the United States Constitution.
    And the United States Constitution sets out some--sets out 
a backdrop from which----
    Mr. Hunter. And conceding that we don't live there, that is 
why my question to you was, are there additional rights beyond 
this package of rights that we put in legislation that you 
think should be in the MCA? Very basic. What additional do you 
think we should give to the accused?
    Mr. Katyal. The rights guaranteed by the Constitution writ 
large. That is, it is not the micro-rights that you are 
pointing to. It is the bigger right that says that all of 
these--you know, that these problems are constitutionally 
based. They are not just statutorily based.
    Without that fundamental backdrop of understanding that the 
Constitution constrains what is going on at Guantanamo, the 
rights can be chipped away at on either side. And that is what 
I think the Supreme Court was getting at in 2006, that it is 
not the rights on paper, but----
    Mr. Hunter. Okay, but when we write a law, the law is 
always on paper, and we presume that the law will be followed. 
And if the law is not followed, that is reversible error.
    My next--so let me ask the other gentlemen, do you see--are 
there other substantive rights--and, incidentally, I wouldn't 
refer to the right to counsel and the presumption of innocence 
as trivial or somehow technical rights. Those are very 
fundamental rights.
    Do the other counsel have any additional rights that you 
would add to this package? And let me go left to right here, 
sir.
    Mr. Oleskey. Ranking Member, I don't have any clients, 
fortunately, in front of military commissions, so I haven't--I 
really am not here today to testify on that subject. And I 
would defer it to Colonel Davis.
    Mr. Hunter. Okay. If you could look for the record, if you 
could look through the MCA, as we put it together, and see if 
there are additional rights that you would recommend, I would 
like to see those for the record, if you could do it.
    Yes, sir, Colonel.
    Colonel Davis. No, I don't think so. As I said--and I 
think, you know, we have a disagreement. My personal opinion is 
they don't have constitutional rights. They have rights under 
Article 3 of the Geneva Convention, as expounded upon in--I 
think it is Article 75 of the Additional Protocol, which to me 
lays out their fundamental rights, which are covered in the 
Military Commissions Act.
    Mr. Hunter. Okay.
    Mr. Klingler, do you see any additional rights beyond this 
package of 15 rights that I have enumerated that you think the 
accused should have?
    Mr. Klingler. Look, Boumediene simply didn't hold that the 
Constitution extends all rights contained in the Constitution 
to Guantanamo detainees. I think that that is a 
mischaracterization of the decision, and I think they are 
contrary court decisions.
    I think the short answer to your question is that the only 
point that Boumediene called into question is potentially the 
exclusive direct review in the federal courts and the 
preclusion of habeas rights after there is any conviction that 
takes place.
    Mr. Hunter. Okay, let me go to the habeas rights. We had 
the case--it was after World War II--in which an appeal was 
made to the Supreme Court or a request for habeas was made, 
presumably by one of the criminal accused of World War II. It 
was the Eisentrager case.
    And the Supreme Court was requested to give habeas, but 
they were imprisoned outside of the United States. And the 
decision by the court was they didn't have a right to ask for 
habeas.
    Now, as I understand, both the Supreme Court ruled, both in 
Rasul v. Bush and on the instant case, Boumediene, that the 
holding in Eisentrager didn't apply to Gitmo, to Guantanamo.
    So here is my question. You have all described to some 
degree--or at least several of you have described habeas as 
rising from basic American values. And I think that the 
chairman laid that out in his opening statement.
    But the court in Eisentrager said, ``Wait a minute. If you 
are making this thing, you are a detainee and presumably in 
Germany, you don't have the right.'' And the recent court said, 
``We still agree with that. If you weren't in Gitmo, we 
wouldn't give you that right.''
    So my question to you is, do you think that the detainees 
in Iraq and Afghanistan--because when we talked about 
Guantanamo, we talked about control. We said, ``Wait a minute. 
Maybe Guantanamo is not a state, but it is definitely under 
American control. It is an extension of American control.'' 
That same argument could be made with respect to people that 
are under the supervision of a Marine sergeant in Afghanistan 
or Iraq.
    So my question to all four of you is, do you think that 
habeas should be applicable to detainees that are held in other 
parts of the world, and specifically Iraq and Afghanistan? I 
will just go from left to right. What do you think?
    Mr. Oleskey. I think the court was proceeding cautiously on 
that question, as I read the decision. What they were saying 
was that what you have in Guantanamo is not only a place under 
total United States control and dominion; you also have people 
who have been held without any approximation of process for six 
and a half years.
    And it is that, the latter point, that seemed to me to be 
the driver for the court that we had held people for so long in 
such a place, said we had a process--what we are referring to 
as the CSRT process--given limited review of that limited 
process, and that wasn't enough in those particular 
circumstances to hold people for that length of time----
    Mr. Hunter. But don't you think that same circumstance 
could take place in Iraq or Afghanistan, that people would be 
held for a long period of time, you could make that argument?
    Mr. Oleskey. I imagine that that could happen and that 
people will make that argument.
    Mr. Hunter. So do you see----
    Mr. Oleskey. And the courts will deal with it when it comes 
along.
    Mr. Hunter. Okay. But in your opinion, should habeas be 
afforded to detainees under American control in Iraq or 
Afghanistan?
    Mr. Oleskey. If they meet those circumstances as found in 
Boumediene. That would be a fact-intensive question arising in 
those cases. How long has the person been held? Is he a 
prisoner of war or enemy combatant? Has he had a CSRT? How long 
before did the CSRT take place?
    As was just said in answer to other questions, has the CSRT 
process been revised to make it more fair and adversarial? 
Those would all be fact----
    Mr. Hunter. Okay. So in some cases, it might be yes; in 
other cases, no.
    Mr. Oleskey. That would be my view.
    Mr. Hunter. Okay.
    Sir.
    Mr. Katyal. I would agree with the way you had 
characterized it and believe that the Supreme Court's decisions 
are clear that there is no habeas corpus rights in Iraq or 
Afghanistan.
    Guantanamo, the court has said, is different because no 
other law applies. There isn't a law of Iraq or Afghanistan to 
protect the detainees. There is only United States law. We 
don't recognize Cuban law as having any force at Guantanamo.
    Mr. Hunter. Okay, but you wouldn't--so you would not--you 
do not believe that habeas attaches to detainees in Iraq or 
Afghanistan?
    Mr. Katyal. I do not. We do not have total control over 
those areas.
    Mr. Hunter. Okay. Okay.
    Colonel.
    Colonel Davis. I don't think it applies at Guantanamo, so 
certainly not Iraq or Afghanistan.
    Mr. Hunter. Okay.
    Mr. Klingler.
    Mr. Klingler. I don't. I think that that would be just a 
gross distortion of the history of the writ and the purposes 
for which it is used, if it were implemented in the battlefield 
areas, particularly, or anywhere, frankly.
    Mr. Hunter. Okay.
    Mr. Klingler. But if I could, just one--I think 
Boumediene--that is the best reading of Boumediene, as well. 
However, it is clear that Boumediene's open-ended test created 
the opportunity for counsel--and we heard it at the end of the 
table--to argue that, in fact, the writ does extend.
    And as you said, a case has--a petition has been filed in 
relation to that. There is going to be litigation over this and 
uncertainty for some time.
    Mr. Hunter. Okay.
    The Miranda rights, the right to--because you have talked, 
gentlemen, about the need to not undertake--to not accept 
testimony as been coerced. And by its very nature, the 
battlefield is coercive.
    And the safeguard that was imposed in our domestic system 
was to give Miranda rights so that people were told, they were 
instructed that they didn't have to talk, so when they saw that 
police dog and they saw that snub-nosed .38 or .45 that the 
officer had, that wouldn't coerce them into saying something 
that they wish they hadn't said later. So we had--we inserted 
that safeguard.
    Do you think that, on the battlefield, that enemy 
combatants should have the right to be Mirandized, to be given 
the Miranda warning, so that they are not later in a court in 
which they feel that they are being prosecuted with coerced 
statements?
    Left to right, what do you think?
    Mr. Oleskey. I don't think the Supreme Court was saying 
that. I think the court----
    Mr. Hunter. I am not asking what the Supreme Court said. I 
am asking--I mean, they made a statement on a limited area. I 
am asking for your expert opinion or your feeling as to whether 
that is a right that should be afforded to enemy combatants to 
ensure that they don't make coerced statements, that is, to 
make sure that they are advised on the battlefield upon being 
apprehended that they do not have to speak and that what they 
say will be used against them? Do you think they should have 
that right?
    Mr. Oleskey. I wouldn't advocate for that, Representative 
Hunter. I think that is not practical on the battlefield. And I 
do have to make my touchstone----
    Mr. Hunter. Well, okay. But let me hold off for a second 
then. If that is so--or maybe I should ask the next gentleman, 
because you said coerced statements should not be utilized----
    Mr. Oleskey. But he and I are talking about the situations 
that we are all familiar with, where people are taken into 
imprisonment, sent to Guantanamo, or sent to some other place, 
and then tortured and mistreated. And that has been basic in 
our law for 75 years that that kind of a statement, post-
apprehension, after you have been detained and seized and held, 
doesn't produce reliable evidence and so it shouldn't be 
admitted.
    Mr. Hunter. Well, that may be so, counsel, but any good 
lawyer is not going to differentiate between the treatment on 
the battlefield, where he may make his most damning statements 
in which he is surrounded by people with weapons, which he will 
allege later were pointed right at him, when they took those 
statements, extracted those statements from him.
    That is why we have--that is why Miranda is always given 
early on. It is not given later on in the--when you are in the 
incarceration, when you are in jail or in prison. It is a given 
right at the point when you are suspected of criminal activity. 
And that was done for a reason, and that is so that you would 
know that you didn't have to make the statements.
    So my question is, because our counsel advised us or one of 
our witnesses advised us at one hearing that, if you had 
followed the UCMJ, which was advocated by some Members of 
Congress, a Miranda warning would be necessary on the 
battlefield.
    So my question is, to prevent coercive statements being 
taken, do you think that Miranda should be followed?
    Mr. Katyal. Sir, I am not sure who that witness was that 
you are referring to, and I obviously have respect for any 
witness----
    Mr. Hunter. One of our JAG witnesses.
    Mr. Katyal [continuing]. But my understanding is that there 
is no way that Miranda rights will apply to people on the 
battlefield, captured on the battlefield, right at that 
battlefield situation.
    And the reason is that our Nation's highest military court, 
the Court of Appeals for the Armed Forces in 1992, decided a 
case--I think it is called United States v. Lonetree. And what 
Lonetree says is that when someone is even being interrogated 
and that the interrogation is motivated by intelligence, then 
there is no need to read Miranda rights.
    So it is an even broader exception in our current military 
system than the one you are positing about Miranda being read 
to people on the battlefield. So I think that would take care 
of your worry, the existing military law.
    Mr. Hunter. But I think you may be wrong, because Lonetree, 
I believe, was an espionage case with respect to embassy 
activity. And I think that clearly the presence on the 
battlefield, the inherent coercive situation on the 
battlefield, lots of people with weapons, at least I would 
think most lawyers would use that as proof of a coercive 
environment----
    Mr. Katyal. Sir, it is----
    Mr. Hunter [continuing]. When statements were made. So you 
might be right that Lonetree will be brought up, but I think it 
might be difficult to make Lonetree----
    Mr. Katyal. The battlefield is undoubtedly coercive. And 
that aspect was--Lonetree. But Lonetree says that is not what 
is relevant. It is the purpose underlying the interrogation. 
And the purpose, I think, would be the same. I don't see any 
good defense lawyer winning this argument. Sorry.
    Mr. Hunter. Okay. But in your estimation, Miranda should 
not be a part--should not be extended?
    Mr. Katyal. That is correct.
    Mr. Hunter. Okay.
    Sir, Colonel, what do you think?
    Colonel Davis. Well, first off, you know, the witness that 
was referred to that was asked the question--I think the person 
you described in your opening statement as a very experienced 
military prosecutor, that was me. I was sitting in the back row 
at the hearing that you were the chairman of, and the issue 
came up----
    Mr. Hunter. That was you. That is right. We said, if you 
took the guy who shot at you with an AK-47, because we had a 
number of members saying, ``Why can't we use UCMJ?'' And I 
asked you the question, would you have to Mirandize them? If 
you used the UCMJ, if you applied it, and you said, yes, you 
would.
    Colonel Davis. Right. And I believe it----
    Mr. Hunter. Right?
    Colonel Davis [continuing]. Was Professor Michael Sharaf 
was the witness. And he said he wasn't an expert on military 
law, but the guy in the back row----
    Mr. Hunter. And I referred to you as some JAG guy.
    Colonel Davis. That was me.
    Mr. Katyal. That was you? Okay.
    Colonel Davis. But literally--if you applied the UCMJ 
literally--and it is not Miranda. It would be Article 31 of the 
UCMJ, which is comparable to Miranda. But if you read it 
literally in the scenario you described, I think--my 
recollection was you described they put him across the hood of 
the Jeep and want to ask him some questions.
    Literally, yes, that would require an Article 31 rights 
warning if you literally applied the UCMJ. But, again, as I 
said, I don't think constitutional rights apply.
    Mr. Hunter. Okay. Okay.
    And, sir, very quickly--and I apologize to my colleagues 
for taking as much time as I have. Go right ahead, sir, and 
then we will move--I will wrap up here.
    Mr. Klingler. I don't believe Miranda rights are required. 
I don't believe the full range of constitutional rights extend 
extraterritorially to people who aren't U.S. citizens or who 
don't have ties to the United States that are substantial.
    Mr. Hunter. Okay. Thank you.
    Thank you, Mr. Chairman.
    And thank you, gentlemen.
    Mr. Spratt [presiding]. Thank you, Mr. Hunter.
    Mr. Oleskey, I believe you are representing two petitioners 
at this point in time?
    Mr. Oleskey. Six, Representative Spratt.
    Mr. Spratt. Six? And six different procedures, six 
different cases?
    Mr. Oleskey. It is one case, because they were all arrested 
together in Bosnia, but, in effect, there are six separate 
cases within that one petition, yes.
    Mr. Spratt. And we have a request from the attorney general 
to the effect that Congress needs to intercede relating back to 
the finding, amongst other things, that the executive branch 
can't do this unilaterally on its own, it requires out working 
together in a lawmaking capacity to create something like this.
    You seem to say, however, that the courts can do it, that 
there is sufficient law, sufficient known procedures, 
sufficient precedent for the courts to proceed, and that is 
what is happening in the cases you are conducting--where you 
are representing petitioners at the present time?
    Mr. Oleskey. Yes, sir.
    Mr. Spratt. And you are saying that Judge Leon, is it, and 
Judge Hogan are blazing this path as we go along and haven't 
encountered any problems that require congressional 
intercession?
    Mr. Oleskey. That would be the way I read what they have 
done. And I have been following both their proceedings 
carefully. They are consolidating all the cases, either 
between--either with Judge Hogan or Judge Leon, working out, as 
Mr. Klingler said, the common issues--and there are many common 
issues--and then coming to decisions on those common issues 
that will allow the cases to proceed, to be heard as a trial in 
a habeas court.
    Mr. Spratt. What kind of evidentiary hearing do you think 
that will be, in this particular case?
    Mr. Oleskey. Well, that is still to be worked out, but it 
seems clear from what the Supreme Court said that, unlike what 
would have happened under the Detainee Treatment Act, where the 
circuit court of appeals could only review the CSRT record 
frozen in time, no matter what new evidence you had to present 
that might exonerate your client, that there was likely to be 
fact-finding by the district court judges based on evidence 
that will be offered that could tend to exonerate your client, 
either to show that the wrong person has been held or that 
there is no authority to hold that person in the case of my 
clients, because they weren't in Afghanistan, they weren't 
connected to 9/11, they had nothing to do with al Qaeda.
    Those would be the kinds of facts, I think, that will be 
heard in these cases.
    Mr. Spratt. How does the court propose to handle coerced 
testimony? Is there----
    Mr. Oleskey. There is no decision on that yet, but I would 
expect----
    Mr. Spratt. Have you made motions to eliminate, to----
    Mr. Oleskey. Not yet, because we don't know what the 
government is going to say. I think you need to understand 
that, about three weeks ago, the government suddenly said to 
all of us in the habeas cases that, instead of relying on the 
records they filed from the CSRTs in 2004, they now want to 
amend all those records and add new claims against virtually 
everyone who is still at Guantanamo.
    So we don't know, as I sit here, what the claims will be 
against any particular person today, as opposed to the claims 
that were made in the CSRTs, which led to the findings four 
years ago that they were enemy combatants. It is a very odd 
situation to be in and rather unfortunate, but the government 
seems inclined to try that. And we will see whether the judges 
allow it.
    Mr. Spratt. Now, if Congress decided that it needed to 
intercede to find coerced testimony, classified evidence, 
confrontational witnesses, to go back and revisit some of the 
law we have passed in light of the Supreme Court decision, 
would this delay the trial that you are now in the--the case 
that you are now conducting?
    Mr. Oleskey. It certainly would delay our case because our 
judge has said that he intends to try every case in front of 
him by December 30 and that our case is the lead case. So we 
expect, based on what he said, that our case will be tried in 
October.
    It would seem unlikely, as I sit here, that this 
legislation that we are talking about hypothetically could work 
its way through all the committee process, and the thoughtful 
hearings that people would want to give it, and be out in time 
to be useful in our case.
    And I believe that would be true of other cases, as well. 
That would be likely to advance rapidly, in view of the Supreme 
Court's directive.
    Mr. Spratt. And your clients don't appear to have been 
known combatants engaged in an ongoing conflict or--I don't 
know if it is the allegation of association with al Qaeda, the 
Taliban, or anything of that nature. They appear to have been 
suspects of some kind of incipient terrorist activity.
    If they are acquitted or if the court cannot find 
satisfactory evidence to continue holding them, what is their 
status?
    Mr. Oleskey. Their status would be that the court could 
order them conditionally released, in the words of the Supreme 
Court, subject to the executive negotiating with, in their 
case, in the first instance, Bosnia, for their return to Bosnia 
under terms and conditions satisfactory to Bosnia and to the 
United States.
    That is what has been happening for the hundreds of men who 
have already been released. Our government has been negotiating 
with Afghanistan, Pakistan, Saudi Arabia, Kuwait and other 
countries, and that is how these men have been released, not 
because of anything the courts have done, but because the 
Executive has decided it is right and appropriate to release 
those men for whatever reasons.
    And the lawyers who are testifying before you haven't been 
a part of that process. That has all been done by the executive 
branch. And that is how the releases of anybody cleared in 
habeas would have to be accomplished, as far as I can 
determine.
    Mr. Spratt. Professor Katyal, you seem to be recognizing 
the need for more structure, and you expressed concern that if 
Congress doesn't act and create better structure that the whole 
process is likely to come unraveled in different courts, and 
different rulings, and different decisions?
    Mr. Katyal. I do. I think that this is an unprecedented 
system that is going on at Guantanamo. And if our desire is to 
actually bring justice to the victims of 9/11 who have suffered 
so much in the horrible attacks, we want a system that works, 
that is going to sustain--that is going to be sustained over 
the long-term.
    And what we have instead is a system that is woefully 
deficient on paper and in practice and is likely to get struck 
down. And so I think that this body does need to pause these 
military commissions, take a deep breath, and figure out, 
``What do we really want our trial system to look like? And let 
us figure out what structural guarantees shall we put in place 
to make sure it stands the test of time and metes out 
justice?''
    Mr. Spratt. Are you concerned about the delays it may cause 
and the concerns on the part of counsel, like Mr. Oleskey, that 
it could deny his clients speedy justice?
    Mr. Katyal. Oh, I am deeply concerned about that. I 
certainly don't think that Congress should interfere with the 
ongoing process at this point in habeas corpus hearings that 
judges in the Washington, D.C., courts are undertaking at this 
moment. I think we should actually use that as a basis for 
legislation, if any, in the future.
    But with respect to the military commissions, this novel, 
unprecedented system, yes, I think they need to be put on pause 
now, which is the fastest way to mete out justice, because we 
are going to have these trials. We are going to have years of 
appeals. The system is going to get struck down, and we will 
all be at the starting point once again in 2012, 2013, 
something like that, with no convictions.
    We are six and a half years after 9/11. Only half of one 
trial has taken place at Guantanamo. The system keeps getting 
struck down because there is a rush to judgment. And, instead, 
I think it is important to take a pause and adopt a durable 
system instead.
    The Chairman [presiding]. Thank you very much.
    Dr. Gingrey, five minutes.
    Dr. Gingrey. Thank you, Mr. Chairman.
    My question is going to be directed toward Mr. Klingler, 
but let me kind of set the stage first. Those before us today 
argue in favor of more rights for the terrorist detainees, 
implying that their detainee is motivated by something other 
than a simple desire by the President and likeminded Americans 
to keep our Nation safe.
    We are trying to balance the rights of these detainees as 
human beings with the rights of the American people to be safe 
and secure. We have bent over backwards to protect the 
detainees' rights, providing them with a forum to challenge 
their status and detention, which, by the way, I think goes 
beyond the Geneva Conventions, which do not bestow rights to 
challenge detention or the opportunity to be released prior to 
the end of hostilities on the POWs.
    Many of those we are continually seeking to confer more and 
more rights upon have been involved with terrorist groups that 
have absolutely no respect for Geneva or international law. In 
fact, they behead prisoners; they fight out of uniform; they 
hide amongst women and children.
    My question is, where does it stop? How far is the liberal 
elite going to go to ensure that the terrorist detainees have 
all the rights afforded American citizens under the 
Constitution?
    This is the same group of people who want to make it more 
difficult for us to listen to the foreign communications of 
suspected terrorists, thus more difficult to prevent terrorist 
attacks, while at the same time continuing to provide more 
rights to those who do commit these acts.
    Mr. Klingler, this is absolutely appalling to me. Does the 
review process currently in place provide the detainees the 
ability to challenge their detention? And do you believe that 
those we capture trying to kill us should, in turn, be provided 
the rights reserved for American citizens under the 
Constitution?
    Mr. Klingler. There is a series of ways that detainees can 
assert----
    Dr. Gingrey. Mr. Klingler, if you don't mind, if you are 
turn that mike directly toward your mouth, I would appreciate 
it.
    Mr. Klingler. Thank you. Is that better?
    Dr. Gingrey. That is better.
    Mr. Klingler. There are a series of ways that detainees can 
now press their rights in federal court. I think the main issue 
is how broad those rights should be and what interests should 
be taken into account in figuring out the scope and breadth of 
those rights.
    I would focus on two things. One is the point that you are 
making, the extent to which the detainees are U.S. citizens or 
have ties to the United States. For the detainees at issue, 
they don't.
    And traditionally--and under established Supreme Court 
precedent--for particular components of the Constitution, they 
don't have the same degree of underlying substantive rights. 
Now, that affects particularly the military commission process.
    The second area of discussion surrounds the habeas 
proceedings themselves. And there they clearly do have habeas 
rights. The question there is, then how do you conduct those 
proceedings in a way that legitimately reflects the military 
and national security interests at stake?
    And there, it is a question of what type of hearing we are 
going to have. Is it going to be a trial-like hearing, a show 
hearing that really brings into question a whole range of 
issues surrounding Guantanamo that are extraneous to the 
immediate issues before the court, in terms of the substantive 
evidence supporting detention?
    And is there going to be a wide latitude for judicial 
policymaking in that context? Or, as the government has argued 
before Judge Hogan, is it going to be a relatively 
straightforward process?
    And then the third is the review process that is still on 
the books in relation to the federal court review of the CSRT 
process. And there, the attorney general has suggested that 
that is highly duplicative of the habeas proceedings and--I 
understand the government is seeking to have those at least 
held in abeyance. And I think that that would be appropriate.
    Dr. Gingrey. In the few seconds I have got left, let me ask 
you a follow-up. Does the right of the terrorist detainees to 
confront their accuser mean they need to be brought to America? 
Do we have to bring soldiers out of combat, as an example, so 
the detainees get to confront their accuser?
    Mr. Klingler. Well, I would argue that the right of 
confrontation is a criminal right that wouldn't apply in the 
habeas context at all and that it would be perfectly 
appropriate for courts to allow that evidence to be presented 
through hearsay evidence, rather than pulling American soldiers 
from Iraq and Afghanistan.
    Dr. Gingrey. And, finally, if the courts forced the release 
of certain detainees, can they be released in the United 
States? Do judges have the right to say where they can be 
released?
    Mr. Klingler. That is an open issue. I think that that is 
very possible, and I expect that the detainees' lawyers will 
argue that.
    Dr. Gingrey. Thank you, Mr. Chairman.
    The Chairman. Thank you very much.
    Dr. Snyder.
    Dr. Snyder. Thank you, Mr. Chairman.
    For you sitting at that table that are defense attorneys in 
this business, I hope that you won't go out of here thinking 
you are going to have opportunity that sometime to use the 
Miranda absence as a way to get your clients off the hook.
    There is not now--nor has there ever been--any interest by 
any Member of Congress in applying the Miranda warnings to the 
battlefield. And I don't know why that topic keeps coming up. 
It was a red herring, every year it has been brought up since 
this war began. And there is not even point in talking about.
    Mr. Hunter. Would the gentleman just yield on that for one 
second?
    Dr. Snyder. No, Mr. Duncan. It is 11:55. Most of us have 
been here for almost two hours. The clock finally has been 
working after an hour and 50 minutes. It wasn't used. And I am 
going to take the remaining time I have.
    You will have all the time, unlimited time you want to when 
the rest of us are done. And let me please finish my question, 
because I don't have----
    Mr. Hunter. Well, then if the gentleman is going to bring 
up an issue that I brought up, and he wants to discuss it in a 
meaningful way----
    Dr. Snyder. Mr. Chairman----
    Mr. Hunter [continuing]. I hope he would give me the 
opportunity to respond to it, because that issue was brought up 
and that was offered as a part of the UCMJ.
    Dr. Snyder. Mr. Chairman, I would respectively request that 
my five minutes be begun anew.
    Mr. Hunter. And I would second his request. I think that is 
fine.
    The Chairman. Start the clock over again.
    Dr. Snyder. Thank you very much.
    The Chairman. There.
    Dr. Snyder. I will repeat what I had said, which is there 
is no interest in this Congress in applying any Miranda warning 
to the battlefield. And if anyone were to apply it, I can 
assure you that every Member of Congress and the American 
people would be shocked and would not want that. So don't--you 
defense attorneys, don't take heart by anything said here 
today.
    Colonel Davis, what I wanted to ask you about was--in your 
statement, I sensed almost hopelessness that the military 
commissions can ever be revived with the integrity that you 
thought they would have at the beginning of it. But you--a 
glimmer of hope when you give four suggestions about how to 
give them. And I want to read what you say in your statement.
    One of them is ensure the independence of each component in 
the military commission process. Another one, make openness and 
transparency of the proceedings an imperative. The fourth one, 
expressly reject the use of evidence obtained by undue 
coercion.
    It is the first one that concerns me the most here, in 
which you say put the military back into military commissions 
and take the politics out. And then your written statement you 
provide to us--and you are very clear. You highlight, ``Take 
the politics out.''
    And, unfortunately, we have had over the last several years 
too many examples in our justice system in this country of 
political influence, this most recently in the report that has 
just come out in the last few days, in which officials in the 
Justice Department have been castigated by the Justice 
Department for political influence. And Monica Goodling, I 
think, has been very candid about her having stepped over the 
line. And this obviously is not over yet.
    As I read your written statement, you are at least 
implying, if not alleging, that you thought there was political 
influence being exerted leading up to the 2006 congressional 
elections in this country and then also that political 
influence was being exerted perhaps to help Prime Minister 
Howard in Australia, who subsequently lost his election.
    Is that your allegation here?
    Colonel Davis. Yes, sir. And I think I described in a 
statement--it was September, I believe, 28th of 2006 was when 
Deputy Secretary of Defense Gordon England, right after the 
high-value detainees were transferred to Department of Defense 
(DOD) custody, said that there could be strategic political 
value in getting some of them charged quickly, which was, you 
know, weeks before the November midterm elections.
    Dr. Snyder. I think in your written statement you said it 
was six weeks before the 2006 election. You know, I think you 
are all--Mr. Hunter has been very eloquent today, as have some 
of you, about the importance of these trials is it is not just 
our safety. It is bringing justice to those families that lost 
so many people on September 11, 2001.
    And to see this process--you may not be right, Colonel 
Davis. You are a very well-respected man. You may not be right 
in your allegation, but I think, Mr. Chairman, these 
allegations concern me as much as anything we have read today, 
that it is not just some political appointee stepping in, in 
the spirit of, ``Colonel Davis, you are not doing this job well 
enough,'' but stepping in, in the spirit of trying to influence 
an ally's election or trying to influence the congressional 
election.
    I don't know where this aspect of this hearing today is 
going to go, but it is very concerning to hear a man of your 
experience and the position that you held in Guantanamo make 
those kind of allegations.
    And, Mr. Chairman, I will yield any remaining time I have 
to Mr. Hunter for any comments he wants to make about the 
Miranda warnings.
    Mr. Hunter. Well, I thank my colleague for yielding and 
would simply say to my colleague that that was--that when we 
had our testimony, with respect to what body of law we were 
going to follow when we put together the MCA, we had witnesses 
who testified that they thought the UCMJ, the Uniform Code of 
Military Justice, was the right blueprint.
    Now, it was important for us to establish what 
ramifications that would have. And when I asked the question, 
what would that mean on the battlefield?
    In fact, the very colonel you have in front of you here, 
who I think you find to have some good degree of credibility, 
testified, if we adopted that--and you may recall, that was 
actually recommended by several Members of the Senate who were 
initial architects of the bill, that we follow the UCMJ, he 
testified to us, he said, ``You can't do that.'' Or he said, 
``If you do it, you are going to require Miranda on the 
battlefield.''
    So that is not a red herring that is thrown up as a matter 
of something that is trivial to the discussion. That was a real 
ramification of a substantive direction that was testified to 
by witnesses and recommended by some of the architects of the 
bill.
    We are now looking at some expansions that may take place, 
in terms of the rights of the accused. I think it is an 
absolutely appropriate question to ask him.
    And I thank the gentleman for yielding to me so that I 
might describe that.
    The Chairman. The time has expired.
    Mr. Bartlett.
    Mr. Bartlett. Thank you very much.
    We are a very blessed people. We are 1 person out of 22 in 
the world, but we have a fourth of all the good things in the 
world. I have often asked myself the question, ``Why?''
    It is certainly not because we have the world's best work 
ethic. All you have to do is look at some of the immigrants 
that are among us, and that will be clear.
    It is not because we have the most focus on technical 
education. This year, India will graduate three times as many 
engineers as we graduate and China will graduate six times as 
many engineers as we graduate.
    It is not because we have the most commitment to the 
nuclear family. Nearly half of our children are born out of 
wedlock.
    There may be other reasons, but I think that it is largely 
because of our enormous commitment to civil liberties. There is 
no other constitution or no other bill of rights in the world 
that comes close to ours. I think this has created, established 
an environment in which creativity and entrepreneurship can 
flourish.
    To deny these rights, I think, puts at risk that we can 
continue to be who we are. If we set aside these great 
constitutional guarantees, even for national security reasons, 
have we not admitted that the enemy has already won?
    And most important security of all, the insurance of our 
civil liberties, is seriously at risk because, who next by 
edict might be denied these great constitutional guarantees?
    Therefore, I was very dismayed by our Gitmo statement that, 
one, since the detainees were unlawful combatants, they should 
not be afforded the protections of the Geneva Conventions--I 
don't know how they thought to get around Geneva IV--and, two, 
since they were not on U.S. soil, the constitutional 
protections did not apply.
    One might logically conclude from these statements that we 
intended to treat these detainees in ways precluded by the 
Geneva Conventions and our Constitution. The constitutional 
issues seem very clear to me. If they were under our control, 
no matter where they were physically, our Constitution applied.
    Even if I agree that unlawful combatants should not be 
afforded Geneva Convention protection, how can I know that they 
are unlawful combatants minus a court trial that found them so? 
My declaring them so doesn't make it so. Does not the simple 
declaration that a detainee is an unlawful combatant violate 
our treasured presumption of innocence?
    If we affirm our right to do this, even for national 
security reasons, have we not put at risk the rights of all of 
us, because by simple edict, in some future emergency, any of 
our constitutional protections could be set aside.
    Where have I gone wrong in my thinking?
    Mr. Klingler. That is a question to me, is it? I agree with 
most of what you said. I think that national security should 
not trump constitutional rights.
    I think, though, that what is at issue is what the scope of 
those constitutional rights are. I don't think--and I don't 
think that the courts' precedents support the conclusion that 
simply because a person is under the control of the U.S. 
military or even at Guantanamo outside of the United States 
proper, that the full range of constitutional rights apply.
    I would direct you to Verdugo-Urquidez and the case decided 
there, some of the insular cases. So the issue isn't balancing 
or setting aside constitutional rights, but ensuring that there 
is a clear understanding of what those are and that there isn't 
an assumption that, simply because the suspension clause has 
been held to apply to Guantanamo, that the full range of 
constitutional rights does so.
    I don't think that is what the Supreme Court said. I don't 
think that is how you can fairly read the decision.
    Mr. Bartlett. Thank you very much, Mr. Chairman.
    The Chairman. Thank you.
    Loretta Sanchez.
    Ms. Sanchez. Thank you, Mr. Chairman. And thank you, 
gentlemen, for being before us. I know some of you have been 
before us before.
    You know, I think we find ourselves in this position 
because it really was the job of the Congress to provide for a 
structure for the military commissions. And we just didn't do 
it. We allowed the Administration to do it. I believe they did 
a bad job of it.
    I know that I had legislation in a bill drawn many years 
before we ever got to the Military Commissions Act and asked 
both the chairman and the ranking member at that time to give 
us a hearing on it and, unfortunately, didn't happen.
    After three court rulings, including Supreme Court rulings 
with Hamdan, all of a sudden we realized it was our job, 
Article I, Section 8, to do this. And we put forward an MCA, 
one which I voted against, by the way, in particular because of 
the habeas issue.
    So here we come back again with the same issue. In fact, I 
had some legislation, a revised bill, H.R. 2543, which we have 
been revising with this latest court case to address some of 
the problems created by the MCA.
    And Justice Kennedy, in his majority opinion, invites us, 
us, the Congress, to find innovative solutions. That is on page 
67 of the opinion. And he also states that certain 
accommodations can be made to reduce the burden of habeas 
proceedings that are placed on the military without 
impermissibly diluting protections of the writ. And that is 
also on page 67.
    So I think we do need to address this. And at the same 
time, I believe that we must give due deference to military and 
intelligence considerations in defining the terms and the 
procedures that will govern the writ going forward.
    You all were just asked--and with the exception of the 
first gentleman, who was wanted to know more circumstantial 
issues--you all agreed that the writ does not extend to 
Afghanistan, for example.
    So if the Administration closes Gitmo and moves the 
detainees to a detainee facility in Afghanistan, detention 
under our U.S. Army, for example, would they then be beyond the 
writ of habeas? Can the Administration avoid the ruling, this 
recent ruling, simply by moving the detainees back to 
Afghanistan, where many of them were captured?
    And I want to say that this is a very important, pertinent 
question, because there are many, including Members of this 
Congress, who continue for the call to close Gitmo.
    And I have always felt that closing Gitmo would mean the 
transfer of these detainees back to Afghanistan, where they 
would have less access to the media, because it is a combat 
zone, less access to this Congress, as the overseer to some of 
this, again, because it is a combat zone, less access to the 
International Red Cross and others.
    So would these prisoners also be deprived of habeas if they 
were moved back to Afghanistan? That is my question for all of 
you.
    Mr. Oleskey. Let me take the first crack at that, 
Congresswoman. The court now has jurisdiction over--the habeas 
courts have jurisdiction over everyone in Guantanamo, as far as 
I know.
    I don't think that the courts would permit the Executive 
unilaterally to move people within its jurisdiction on pending 
habeas cases to Afghanistan or anywhere with the intent of 
ousting the jurisdiction of the courts. And I don't believe 
that the Executive would do that, understanding and knowing 
that these cases are pending.
    I think Secretary Gates has made many important statements 
about his views about Guantanamo. There is nothing in what he 
says that leads me to believe that he would be a party to any 
such action.
    So while it is a theoretical possibility, I don't think the 
Administration would do it. It would set up a conflict with the 
courts that would be very damaging. And I think, if it was 
attempted, that the courts would act to prevent it.
    Mr. Katyal. Let me begin by thanking you for your historic 
leadership on these issues. I wish that Congress had listened 
to you many years ago. We would have had trials underway and a 
system that would have been stable. And, instead, we find 
ourselves six and a half years later without a trial taking 
place.
    With respect to closing Guantanamo, I don't think the 
reason to close Guantanamo is really just about human rights of 
the detainees. It is about America's self-interest. As 
Secretary Rice and Secretary Gates have said, Guantanamo is a 
foreign policy disaster. And so I think the reasons for closing 
it are not as much about the detainees but about us.
    I think if the detainees who are currently there are moved 
outside to an area outside of court control, I do think that 
the federal courts may have something to say about it, with 
respect to those current detainees.
    Ms. Sanchez. What about the future of somebody in action, 
caught in the same way, and now held in the prison in 
Afghanistan, controlled by the U.S. military, even though there 
are Afghan laws, those necessarily wouldn't apply to our 
facility holding somebody who is a combatant supposedly against 
us?
    Mr. Katyal. Precisely correct, that is--and I think that is 
happening now, that is, there aren't many detainees being 
brought to Guantanamo. And the reason Guantanamo exists, the 
reason we used it in 2001 wasn't because the military liked the 
weather. It was because the Bush Administration had a legal 
fiction that they could bring people there and have them 
outside of the control of the United States courts.
    Now the Supreme Court has emphatically rejected that idea, 
so Guantanamo has outlived its usefulness, in terms of being an 
escape from federal court processes.
    The Chairman. The gentlelady's time has expired. The 
monitor is not working, but time is up.
    Ms. Sanchez. I love being called on that after waiting for 
two hours. Thank you, Mr. Chairman.
    The Chairman. You bet.
    Five minutes, Mr. Murphy.
    Mr. Murphy. Thank you, Mr. Chairman. And I thank the panel 
for being here today.
    I would start by saying, Colonel Davis, thank you for your 
service to our country. And I think it is very appropriate that 
today, in your opening testimony, you cited the prosecutor for 
the World War II saboteurs who said that--he said this in 2001 
in his op-ed, as you mentioned--that how we prosecute al Qaeda 
members will say just as much about us as it will say about 
those al Qaeda members.
    The petitioners in the Boumediene case simply asked the 
court to make a ruling on exactly who the Administration can 
indefinitely hold as an unlawful enemy combatant, pursuant to 
the 2001 Authorization for Use of Military Force. The court, 
however, has been silent on that issue.
    In subsequent cases after the Boumediene, they make their 
way through the courts, such as the al-Murri case and the 
Parhat case. It is becoming increasingly clear to this 
Congress, and myself specifically, that we will have to re-
examine this question in the near future.
    Mr. Oleskey, as counsel in the Boumediene case, let me ask 
you. In your opinion, does the 2001 AUMF allow the President to 
detain in perpetuity someone who has little to no tangential 
connection to al Qaeda and who is not engaged in any 
belligerent acts against the United States? And a follow up: 
Does the Constitution give the President this authority?
    Mr. Oleskey. I think that the Supreme Court hasn't spoken 
definitively to the second point, so we don't know what they 
will say, but it would be my view that the implication of 
Boumediene is that the Constitution does not give the President 
the authority to indefinitely detain someone suspected or 
accused of terrorist activity.
    The Constitution and our statutory scheme say there is a 
criminal justice system. And if there is terrorist activity 
that is not--that disqualifies you from POW status, then you 
indict the person. And we have had many examples of successful 
indictments and prosecutions.
    So I think that that is where we are headed on the second 
question. And your first question, again, was----
    Mr. Murphy. Well, one, does the Constitution give the 
President the authority to do so? And then----
    Mr. Oleskey. I think the better view is that you in the 
Congress intended to give the President limited authority to go 
after people directly involved in the atrocity of September 
11th.
    Instead, I think what the cases show is the Administration 
used that language to pick up people all over the world on a 
variety of bases, many of them people who appear to be innocent 
of any wrongdoing at all, others of whom may have had some 
activity with radical groups that had nothing to do with 
September 11th.
    The great strength of the habeas process that we are now at 
last embarked upon is it should sort out who those people are 
and if they have a connection to September 11th. And that is 
within the authorization. Then they presumably will continue to 
be held and some of those people, as we have been discussing, 
would be the subject of military commissions, where they may be 
found guilty or may not.
    The rest ought to be found--if they are not connected to 
September 11th, then not within that resolution--to be ordered 
released, subject to the Executive's right to negotiate their 
return to some place that is safe for them and for us.
    Mr. Murphy. Yes. And I think that, as the panel understands 
up here and as the members understand, obviously, this is a new 
case all coming out. We are looking at--as today is July the 
30th, we have had two significant cases, obviously, the Parhat 
case, where we are talking about the 17 Chinese, and then al-
Murri case, where we are talking about the citizen of Qatar who 
was a U.S. resident.
    So to follow up on my first question, if the Parhat 
decision and the al-Murri decisions, especially considering the 
opinion of Judge Wilkinson, who I think we would all agree is a 
conservative, but dissented in this case, and very well-
respected, especially considering his opinion of Judge 
Wilkinson, if that is any guide, the Administration's broad 
definition of who can be indefinitely detained under the AUMF 
is going to be struck down as either unconstitutional or, more 
likely, in my opinion, outside the authorization of the AUMF.
    If that is the case, it is possible that many detainees 
held at Gitmo and those held at other U.S. military facilities 
around the world are going to be released unless the courts and 
the Congress of the United States come up with a new legal 
framework for deciding who will be detained.
    So, Mr. Oleskey, if the court holds that the Administration 
is acting outside the scope of the AUMF, how do you see a path 
forward for this Congress to work in a bipartisan manner to 
reach a new legal and constitutionally valid framework that 
ensures that we are detaining those who are the most culpable 
and pose the greatest risk, while not, as Judge Wilkinson I 
think astutely noted, breaching this country's most fundamental 
values?
    If you could comment, I would appreciate it.
    Mr. Oleskey. I think that is a fair point. I remember that 
back when these cases were working their way up, Judge Green in 
the district court asked the deputy solicitor general, 
``Suppose a little, old lady in Switzerland is asked to send 
money to an orphanage in Afghanistan. She doesn't know it is an 
al Qaeda front, but American intelligence does. Do you say the 
AUMF, Mr. Deputy, allows her to be seized in Switzerland by the 
American military, taken to Guantanamo, and held 
indefinitely?''
    And the answer was, ``Yes, that is the government's 
position.''
    So I agree with the premise of your question, Congressman. 
The definition has been treated by the Administration as hugely 
overbroad and misused.
    In terms of what happens, I think I disagree with Mr. 
Katyal on the special courts that he has been advocating. I 
think the criminal justice system is perfectly competent to 
deal with people who committed crimes against the United 
States.
    That the crimes are unconnected with 9/11 doesn't make them 
any less crimes, if they are within the scope of our federal 
criminal statues, such as the bombing of the USS Cole, the 
Khobar Towers bombings in Saudi Arabia, the first bombing of 
the U.S. World Trade Center. Those are all examples of how our 
criminal laws can deal with and have dealt effectively with 
people who have committed legitimate terrorist actions.
    Whether there is any role for Congress to play, I think, is 
a matter that I would at least like to see you wait on while 
some of these habeas cases go forward and we see what the facts 
are and what the judges do. After that, as Mr. Katyal and 
others have suggested here today, there may be a role for 
Congress to weigh in deliberately, as your question suggests, 
with a thoughtful approach to redefinition.
    I don't think that would be useful now, because we have a 
process that at long last is underway, in which facts are going 
to be found very soon by experienced federal judges.
    Mr. Murphy. Thank you, sir.
    Would anyone else on the panel like to comment? Colonel.
    Colonel Davis. Oh, I think if you try to treat these as 
ordinary criminal cases, it is a naive approach. These are 
not--these guys didn't rob the corner liquor store. I think 
there is a war component to this.
    I was not a fan of--there are a number of folks that have 
pitched the national security courts in some form or another. 
Initially----
    Mr. Murphy. You can continue to answer. I just can't ask 
anything else.
    The Chairman. Go ahead and answer the question.
    Colonel Davis. Okay. Initially, I was not a huge fan of it. 
I still think the Military Commissions Act was a pretty good 
piece of legislation that, if it was implemented properly, 
could render fair trials.
    I am beginning to come around to the national security 
court concept. What I would like to see--I think there is a war 
component to terrorism; it is not your ordinary Title 18 type 
of crime--would be a national security court that combines both 
military and federal judges and takes the best aspects of the 
Military Commissions Act, the CIPA procedures, and federal and 
military law.
    Because I think what--you know, we keep talking about 
Guantanamo, and that is the immediate, you know, issue in front 
of us, but I think this is a longer term issue. And whatever 
the solution is needs to address the Guantanamo problem, plus 
terrorism, you know, over a longer perspective.
    And, again, I think Guantanamo is grossly mischaracterized. 
I mean, I used to be a bail bondsman, so I have seen a lot of 
jails. It is a pretty decent place, but it has become such a 
blight on the country that perhaps it is worth closing it just 
to--or try to erase that stain.
    Mr. Murphy. Thank you, gentlemen.
    Thank you, Mr. Chairman.
    The Chairman. Yes, thank the gentleman.
    You will note the monitor is working again.
    Mr. Murphy. Yes, sir.
    The Chairman. Mr. Cummings.
    Mr. Cummings. I would direct this to all of you or whoever 
wants to answer. First of all, I think it is very important 
that--and I know you all share this--that we safeguard our 
Constitution and the rights under that Constitution. I think 
this is our watch and we have a duty to do then.
    Boumediene suggested that habeas corpus might not be 
constitutionally required if there were suitable alternative 
processes in place to protect against the arbitrary exercise of 
governmental power.
    As such, do you believe that the comprehensive protective 
laws governing prisoners of war under the Third Geneva 
Convention, which the United States has decided is inapplicable 
to members or affiliates of al Qaeda or the Taliban, but which 
would be applicable in almost any conceivable future armed 
conflict against another nation-state, should be applied to 
detainees, particularly those suspected of being affiliated 
with al Qaeda or the Taliban?
    If you do believe that such obligations should be afforded 
to these individuals, what dangers exist in the United States 
failing to ensure that these detainees' rights are protected as 
POWs?
    How can we ensure as a Nation that we are balancing our 
priority of protecting our Nation from any prospective act of 
terrorism, something that we must do, while ensuring that 
current detainees, even those that may be allegedly associated 
with terrorist organizations, are provided with the protections 
that they are deemed to have under the international 
humanitarian law and customary law?
    Mr. Oleskey. I would say, if the Administration had adhered 
to the Geneva Conventions, we wouldn't have had these Supreme 
Court cases and we wouldn't be having this hearing today. We 
would have a very different kind of situation.
    As I said earlier, if there are people who have committed 
violations of international law and American law, there are 
recognized procedures to follow.
    The military commissions are being criticized here by lots 
of us for not providing adequate protection, but the same 
people on the panel and in the Congress who are criticizing 
that process are recognizing, as your question does, that we 
need some way to protect the United States against terrorists 
and ensure that they don't commit crimes again.
    So whether it is an enhanced military commission, whether 
it is a special national security court, there is nothing 
inconsistent with those approaches to effectively criminalizing 
terrorist behavior in a different way, in a different process, 
and still treating people who are not put before those 
proceedings as POWs in accordance with international law.
    So I take the premise of your question to be that we can 
both protect the country and respect our international 
obligations in a way that makes us, again, a beacon for the 
world in these areas and not the embarrassment we have become 
because of Guantanamo. And I agree with the premise.
    Mr. Cummings. Well, going back to something that Mr. Davis 
wrote in his testimony--and he talked about how criminals we 
are punishing sort of after the fact, and these detainees are 
sort of before the fact, we are trying to prevent.
    And, you know, I guess that does present a very different 
kind of set of circumstances when you are trying to prevent 
something from happening, as opposed to saying you did 
something and now we are going to punish you.
    And I am just trying to figure out, where did that concept 
come from, that prevent concept?
    Mr. Oleskey. Well, in the law of war, it comes from the 
notion that an enemy soldier can be lawfully held during the 
duration of the conflict so that he cannot return to the 
battlefield.
    But what the Administration has said is that the whole 
world is a battlefield, not just Afghanistan or Iraq, and 
therefore anybody picked up who can be claimed to be a member 
of some radical group or terrorist group, or that knows 
somebody who is, or to provide some support, however innocently 
to that group, can be held as if they were a POW for the 
duration of the war on terror, which, as Justice O'Connor said 
back in 2004, could be for the rest of your life.
    So that preventive function that comes out of the law of 
war doesn't apply as the Administration has applied it. And 
that is why we have had these cases.
    Mr. Cummings. Thank you very much.
    The Chairman. I thank the gentleman.
    Mr. Hunter.
    Mr. Hunter. Thank you, Mr. Chairman.
    And, gentlemen, thanks for being with us and for spending 
as much time as you have. And, of course, this is very timely 
that you are with us.
    But we have got this problem. You have got--the habeas 
right has been extended by the Supreme Court decision. And you 
have the prospects now of habeas being applied for--and 
presumably before many, many federal courts by many folks who 
are presently detained.
    And the question is, is it appropriate for us at this point 
to have a direction, to put together some guidelines? I 
noticed--I think it is--the D.C. Circuit said, if Congress is 
going to do this, now is the time, because it looks like we are 
going to have the need for directions. I am paraphrasing, but 
that is essentially their statement.
    You know, if you look at the--if you are a court that has 
been petitioned for habeas, and let us say you have a guy who 
says, ``You know, I was picked up on a sweep in a firefight in 
an Afghan village, and I was apprehended because I had an AK or 
I had some ammo, and the reason I had that is because I am part 
of an ad hoc security service,'' or, ``I am out protecting the 
flock of sheep that this particular village maintains. And I 
got picked up wrongly.''
    In a way, the farmer in the field argument that has been 
made a lot of times at Guantanamo--in fact, we have released a 
number of people at Guantanamo, as the colonel knows. A few of 
them went back and picked up arms against us, so we made a 
mistake in that case. We were too lenient and made a mistake of 
judgment.
    But my point is, that is thrust in the lap of a federal 
court. Now, here is a court in the United States. And the 
habeas--and they ask--they hold a little prayer meeting with 
their staff and their judge and say, ``How do we conduct this? 
What is the extent of our review? Do we try to get villagers 
from this small village in Afghanistan? Do we try to pull back 
members of the military who are in that particular squad from 
the 10th Mountain Division that made this sweep?''
    It looks to me like it is going to be a very, very--without 
a prescription for how far they look, and what they do, and 
whether or not they have essentially a trial on the merits, it 
looks to me like you are going to have 101 different recipes by 
different courts as they try to figure out what we want them to 
do, in terms of a habeas review.
    So what are your thoughts on this? How do you--do you think 
there is a danger of having--going off in 50 different 
directions if we don't have a prescription, or a recipe, or a 
set of directions as to how the court proceeds on this or how 
the courts proceed on this?
    Mr. Katyal. Let me begin by saying I don't think that there 
is some immediate crisis. We are only a month or so after the 
Supreme Court's Boumediene decision. I think we should let that 
process play out, as Mr. Oleskey says, with experienced federal 
judges. And that will then inform what this body does.
    I am very worried about the number of misperceptions that 
have happened in this debate thus far in the past month. I 
mean, Representative Hunter, you know more about this issue 
that almost anyone, and yet you opened the hearing today by 
saying--and I think I am getting this quote exactly right--
``The right to habeas corpus is something no American soldier 
enjoys.''
    But, of course, since 1890 in the In re Grimley decision, 
the Supreme Court has extended habeas corpus rights to American 
soldiers.
    Mr. Hunter. No, no, not as a POW.
    Mr. Katyal. American soldiers have habeas corpus rights. 
They can't be POWs because they are, after all, our own 
soldiers.
    Mr. Hunter. No, but I am talking about an American soldier 
who is a POW held in another country. And presumably I would 
think that would apply to POWs who are in other militaries. We 
don't have--when we had our German camps of soldiers in this 
country, did we allow them to have habeas?
    Mr. Katyal. If you are talking about other soldiers--I am 
sorry, I thought your statement----
    Mr. Hunter. I am talking about--yes.
    Mr. Katyal [continuing]. I thought you had said a couple of 
times that American soldiers did not have habeas corpus rights, 
and American soldiers----
    Mr. Hunter. That is exactly what I meant. An American 
soldier held as a POW doesn't have that right--obviously, it 
would be extended by another country, nor do we, to my 
knowledge, extend that right to other soldiers when they are a 
POW of our country.
    In other words, a POW, whether you say he is a German POW, 
an Italian POW, an American POW, does not have that right. And 
yet people who are essentially soldiers in this war against 
terror now have, according to this five-to-four decision, have 
a habeas right. So we have extended a right which hasn't 
extended to combatants in a war, okay?
    Mr. Katyal. Sir, in the Ex Parte Kiernan decision in World 
War II, the Supreme Court extended the writ of habeas corpus 
both to Americans and to enemies, Nazi saboteurs. So it has 
been around for a while.
    Mr. Hunter. Those were not soldiers.
    Mr. Katyal. They were enemy--unlawful enemy combatants.
    Mr. Hunter. They were not soldiers, were they?
    Mr. Katyal. They were----
    Mr. Hunter. And so the point that I made was absolutely 
accurate. And that is part of--and I am not trying to beat you 
down, but that is the problem we have here. You have a 
soldier--let us say he is in Saddam Hussein's army--and he 
shoots at Americans with his AK-47. He has a certain bundle of 
rights, but a very limited bundle of rights, when he is 
captured.
    That same person now decides he is going to be a terrorist, 
and he sheds the uniform, and he does something against 
American troops, and he ends up in Guantanamo, he now has a 
very different bundle of rights, indeed, one that we are 
defining right now with this list of rights that people have 
under the DCA act.
    So my point is, in ways--it is interesting that in ways we 
have expanded the rights for people who are killing Americans 
in battlefields and who are engaging in what heretofore in some 
cases was a war that was undertaken by people in uniform.
    And that is why I think--and that is why I brought up the 
point--and the colonel buttressed this point--when we had 
Members of Congress who said, ``Let us give a UCMJ right,'' 
that is why we brought up the fact that, in fact, that did, 
indeed, encompass certain things like Miranda that would now 
have to be attached to that person's bundle of rights.
    So my question is, you are a federal judge. You have 
extended a habeas right to a person who says, ``Hey, I was 
caught up in this sweep in this remote village.'' Aren't you 
going to have a real difficulty? Because much of whether or not 
that person was here is now being lawfully held turns on the 
facts, and the facts are whether or not he was, in fact, 
protecting the sheep with his AK-47, protecting the herd, and 
he was caught up in a sweep, he was a farmer in a field, and he 
was not purposefully attacking American forces as the rest of 
the people were.
    That is going to depend on the facts. And the ability of 
that court to retrieve those facts from a battlefield 
situation, which dissipated years ago, I think is going to be 
very difficult as a practical matter. Don't you agree with 
that, that that is going to be tough to do?
    Mr. Katyal. Courts can always appoint special masters. They 
have that existing power to go--and so they could have a 
military apparatus do the first cut of that. My fundamental 
point is this----
    Mr. Hunter. Okay, but now let me--I want you to answer this 
question, though. You can appoint all the masters you want, but 
how do you, in a real sense, ascertain what the facts were 
three years ago in a remote village in Afghanistan as to 
whether or not this guy really had a rifle or not?
    Mr. Katyal. And that is what----
    Mr. Hunter. Or had a rifle that he was using against 
Americans?
    Mr. Katyal. And Representative----
    Mr. Hunter. That is my question.
    Mr. Katyal. And that is what we warned about three years 
ago and five years ago. Let us have a system in place that is 
the Geneva Conventions to do that initial sorting. We didn't do 
that. And so now we find ourselves in a mess.
    Mr. Hunter. But you haven't answered the practical 
question. We are at where we are, and you are now going to have 
habeas proceedings. How will a federal court today some place 
in the United States be able to reach back and retrieve facts 
so that they can give this defendant a fair hearing on whether 
or not he was picked up in a sweep and, in fact, was not part 
of a body of illegal combatants?
    Mr. Katyal. We have experienced federal judges with 
investigative tools and the power to use special masters. Let 
us let that system play out and see what happens, instead of 
just cutting them off at the get-go and saying, ``You are 
incapable of doing this.''
    Mr. Hunter. Well, I think--I am not saying we have to tell 
them they are incapable, but once again you have used the 
statement ``special masters'' and they have certain powers. In 
a practical sense, it is going to be difficult, I think, to do 
that and give the guy a fair shot at--if he wants to have 
essentially a little trial on the facts as to whether or not he 
was illegally picked up. You are going to have to be able to 
reach back and get people who have long since dissipated from 
the battlefield scene.
    And let me ask the other gentlemen what they think about 
that. Do you think that is going to be practical to be able to 
have without guidelines to have all these federal courts trying 
to come up with what they think is a fair habeas proceeding? Or 
do you think we should let it go and see if they can do it?
    Colonel Davis. Sir, I think the court in Boumediene I think 
reluctantly got into the fray. I mean, I think, as they say, 
had there been a viable, meaningful process in place to 
determine, you know, who is the sheep-herder from who is the 
terrorist, you know, who really is the enemy, had there been a 
meaningful process in place, I don't think the court would have 
intervened.
    But we are stuck now with, you know, the court inserting 
itself into this process. So I think, you know, had we a year 
ago fixed the CSRT process to make it a meaningful review, we 
might not be sitting here today.
    Mr. Hunter. I know. But we are here today, Colonel.
    Colonel Davis. Right.
    Mr. Hunter. So what do we do?
    Colonel Davis. Well, again, I think we have got to look 
at--number one, you know, the immediate issue is Gitmo and what 
do we do with the 265 guys sitting at Gitmo? The solution has 
to be bigger than that, as what do we do with the next group 
that comes along behind that? So, you know, Gitmo is the 
immediate problem, but this really requires a long-term 
solution. There needs to be a robust, meaningful process to 
sort out the enemy from the----
    Mr. Hunter. But, see, in the end, what you are going to 
have is basically battlefield reports, which are very sketchy. 
They are not detailed.
    Mr. Klingler, do you have any comments? Do you think this 
is going to be doable by the federal courts?
    Mr. Klingler. I think the courts have already asked for 
some help in this. The questions that they have already posed 
indicate that they are tremendously difficult issues in front 
of them.
    The pleadings that have been filed already indicate 
tremendous divergence in whether we are going to have something 
approaching a full-blown trial or something that is very 
streamlined and efficient.
    I do think that there is a path through this. I think it 
needs legislative help. I think it is the congressional 
imprimatur on standards of deferring to the government and the 
military's determinations, once they put forth a substantial 
degree of evidence and a streamlining of the process, to avoid 
the questions that you are--and the difficulties that you are 
pointing to.
    Mr. Oleskey. I would say, Representative, that the problem 
has been so far that all the issues that we have confronted 
have been abstract legal principles. Does habeas extend? Where 
does it extend? Now we are getting down to where the rubber 
meets the road, which is what trial judges do. They sort out 
the facts.
    I acknowledge the premise of your question. There will be 
some cases where the facts are difficult. The Supreme Court 
already said in 2004 that perhaps you would have to have 
something called a declaration in that case which would 
summarize the evidence, subject to limited cross-examination of 
the person making the declaration.
    But that is what courts do. And the notion that we can give 
you enough wisdom here to figure out a template for 275 cases 
to resolve the disgrace that Guantanamo has become, correctly 
or not, I think is far-fetched.
    Let that process go on. Let the facts get sorted out. 
Judges can handle these issues, as Professor Katyal said. If 
out of that mix the whole system still cries out for a 
legislative fix, then I think you should take another look at 
it, yes.
    Mr. Hunter. You don't think there is a problem with having 
all these different federal courts without us laying out a 
template for how you do this? You don't think there is a 
problem with these courts going off in a lot of different 
directions?
    We have all agreed that the evidence in a lot of cases will 
be very, very skimpy, because it is coming--it is not coming 
from a crime scene. It is coming from a battlefield. And so if 
you have a court that says--what if you have a court that says, 
``You know, I can't give this guy a fair trial because I can't 
find anybody in that village, we can't retrieve any of them, we 
can't ascertain who was in that Marine unit or where they are, 
so we think we have got to let him go,'' is that a possibility?
    Mr. Oleskey. Well, as you pointed out, and as we all 
acknowledge, more people have been released from Guantanamo by 
Executive decision without any input from any habeas lawyers or 
courts than the men who are still there.
    But to your central premise, I think I disagree. There is 
only one federal court hearing these cases by design. That is 
the United States District Court in Washington, D.C., right 
down the street. There is only one circuit that will hear these 
habeas appeals, the D.C. circuit, which has already weighed in 
under the DTA and the habeas, so----
    Mr. Hunter. So you think they will come up with a fairly--
with a good structure?
    Mr. Oleskey. I think they will come up with a thoughtful 
approach that will, since it is being run through only two 
judges, command respect and conformity by the other judges.
    And if they are wrong, there will be an appeal. And at that 
point, when it appears there is still a dispute about some 
basic legal principle, as opposed to the facts about whether a 
man was a sheep-herder or a rifleman, then you may decide to 
get involved, yes. But I think now is not that time.
    Mr. Hunter. Okay. Thank you very much, Mr. Chairman.
    Gentlemen, thank you for your time today.
    The Chairman. Gentlemen, thank you. We have three votes 
that have just been called for. And we have no further 
questions for you.
    However, we must tell you we appreciate your expertise and 
your testimony today. It has been very, very helpful. And we 
hope to see you again. Thank you.
    [Whereupon, at 12:39 p.m., the committee was adjourned.]



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